New Jersey Administrative Code, Title 1 — Administrative Law

Chapter 1 UNIFORM ADMINISTRATIVE PROCEDURE RULES

Subchapter 1 APPLICABILITY, SCOPE, CITATION OF RULES, CONSTRUCTION AND RELAXATION; COMPUTATION OF TIME

N.J. Admin. Code § 1:1-1.1 Applicability; scope; special hearing rules

(a) Subject to any superseding Federal or State law, this chapter shall govern the procedural aspects pertaining to transmission, the conduct of the hearing and the rendering of the initial and final decisions in all contested cases in the Executive Branch of the State Government. N.J.S.A. 52:14F-5. This chapter governs the procedure whether the contested case is before the Office of Administrative Law, an agency head or any other administrative agency. Subchapter 21 governs the conduct of certain uncontested cases handled by the Office of Administrative Law under N.J.S.A. 52:14F-5 ( o ).

(b) In the event of conflict between this chapter and any other agency rule, except agency rules which incorporate statutory requirements, this chapter shall prevail.

(c) No agency other than the Office of Administrative Law may hereafter propose any rules to regulate the conduct of contested cases and the rendering of administrative adjudications. N.J.S.A. 52:14F-5(e). Specific pleading and other pre-transmittal requirements may be regulated by the agencies provided they are consistent with this chapter.

(d) In addition to those rules that specifically govern a transmitting agency's responsibilities and the jurisdiction of the Office of Administrative Law, the following Uniform Administrative Procedure rules are not intended to apply to contested cases heard in agencies exempt under N.J.S.A. 52:14F-8:

N.J.A.C. 1:1-11.1(c) (Subpoena forms);

N.J.A.C. 1:1-12.6 (Emergency relief);

N.J.A.C. 1:1-14.1 0 (Interlocutory review);

N.J.A.C. 1:1-16.2(b) and (c) (Time of motion to intervene);

N.J.A.C. 1:1-18.8 (Extensions of time limits for decisions and exceptions); and

6.N.J.A.C. N.J.S.A. 1:1-21 (Uncontested cases).

(e) This chapter is subject to special hearing rules applicable to particular agencies. Such rules may be adopted by the Office of Administrative Law after consultation with a transmitting agency or at the request of a transmitting agency when the transmitted cases involve unique hearing requirements that are not addressed by this chapter. Where required by Federal law, special hearing rules may be promulgated by a transmitting agency with the concurrence of the Office of Administrative Law.

History

• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In (b), deleted the last sentence.

N.J. Admin. Code § 1:1-1.2 Citation of rules

This chapter shall be referred to as the "New Jersey Uniform Administrative Procedure Rules" and may be cited as, for example, N.J.A.C. 1:1-1.2.

N.J. Admin. Code § 1:1-1.3 Construction and relaxation

(a) This chapter shall be construed to achieve just results, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. In the absence of a rule, a judge may proceed in accordance with the New Jersey Court Rules, provided the rules are compatible with these purposes. Court rules regarding third party practices and class action designations may not be applied unless such procedures are specifically statutorily authorized in administrative hearings.

(b) Except as stated in (c) below, procedural rules may be relaxed or disregarded if the judge determines that adherence would result in unfairness or injustice. The judge shall make such determinations and state the reasons for doing so on the record.

(c) The burden of proof shall not be relaxed. Statutory procedural requirements shall not be relaxed or disregarded except when permitted by the controlling Federal or State statutes.

History

• Amended by R.1992 d.213, effective 5/18/1992.
• See: 24 N.J.R. 321(a), 24 N.J.R. 1873(b).
• Revised (a).

N.J. Admin. Code § 1:1-1.4 Computation of time

In computing any period of time fixed by rule or judicial order, the day of the act or event from which the designated period begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday or legal holiday. In computing a period of time of less than seven days, Saturday, Sunday and legal holidays shall be excluded.

N.J. Admin. Code § 1:1-1.5 Conduct of administrative law judges

The Code of Judicial Conduct for Administrative Law Judges, as incorporated herein by reference as the chapter Appendix, shall govern the conduct of administrative law judges.

History

• New Rule, R.1992 d.430, effective 11/2/1992.
• See: 24 New Jersey Register 2755(a), 24 New Jersey Register 4028(a).
• Amended by R.2002 d.198, effective 7/1/2002.
• See: 34 New Jersey Register 983(a), 34 New Jersey Register 2309(a).

Subchapter 2 DEFINITIONS

N.J. Admin. Code § 1:1-2.1 Definitions

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise.

"Adjournment" means postponement of the hearing until another time.

"Administrative law judge" means a person appointed pursuant to N.J.S.A. 52:14F-4 or N.J.S.A. 52:14F-5(m) and assigned by the Director of the Office of Administrative Law to preside over contested cases and other proceedings.

"Administrative rule" means each agency statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency. The term includes the amendment or repeal of any rule, but does not include: (1) statements concerning the internal management or discipline of any agency; (2) intra-agency and inter-agency statements; and (3) agency decisions and findings in contested cases. N.J.S.A. 52:14B-2(e).

"Affidavit" means a written statement that is signed and sworn or affirmed to be true in the presence of a notary public or other person authorized to administer an oath or affirmation.

"Agency" includes each of the principal departments in the executive branch of the State government, and all boards, divisions, commissions, agencies, departments, councils, authorities, offices or officers within any such departments now existing or hereafter established and authorized by statute to make, adopt or promulgate rules or adjudicate contested cases, except the office of the Governor. N.J.S.A. 52:14B-2(a).

"Agency head" means the person or body authorized by law to render final decisions in contested cases, except that in the Department of Education, the State Board of Education is the head of an agency but the Commissioner of Education is authorized by statute to render final decisions.

"Appellant" means the party who is requesting a reversal or modification of a prior result.

"Burden of producing evidence" means the obligation of a party to introduce evidence when necessary to avoid the risk of a contrary decision or peremptory finding on a material issue of fact.

"Burden of proof" means the obligation of a party to meet the requirements of a rule of law that a fact be proved by a preponderance of the evidence or by clear and convincing evidence.

"Clerk" means the Clerk of the Office of Administrative Law or any such scheduling or docketing officer designated by the head of an agency to oversee the administration of contested cases.

"Close of the record" means that time when the record for a case closes and after which no subsequently submitted information may be considered by the judge.

"Complainant" means the party who requests action or relief by filing a complaint.

"Contested case" means an adversary proceeding, including any licensing proceeding, in which the legal rights, duties, obligations, privileges, benefits or other legal relations of specific parties are required by constitutional right or by statute to be determined by an agency by decisions, determinations, or orders, addressed to them or disposing of their interests, after opportunity for an agency hearing. N.J.S.A. 52:14B-2. The required hearing must be designed to result in an adjudication concerning the rights, duties, obligations, privileges, benefits or other legal relations of specific parties over which there exist disputed questions of fact, law or disposition relating to past, current or proposed activities or interests. Contested cases are not informational nor intended to provide a forum for the expression of public sentiment on proposed agency action or broad policy issues affecting entire industries or large, undefined classes of people.

"Director" means the Director and Chief Administrative Law Judge of the Office of Administrative Law.

"Discovery" means the process by which a party is permitted on demand or upon motion granted by a judge to view, inspect or receive a copy of documents, and gain other information necessary to prepare a case for hearing.

"Docket number" means the number given to a case by the Office of Administrative Law, which contains the abbreviation of the agency that sent the case to the Office of Administrative Law, a sequence number and the year. Sample:

| HPW | 8831 | 82 | | --- | --- | --- | | agency | sequence no. | year |

"Evidence" is the means from which inferences may be drawn as a basis of proof in the conduct of contested cases, and includes testimony in the form of opinion and hearsay.

"Filing" means receipt of an original or clear copy of a paper by the proper office or officer.

"Final decision" means a decision by an agency head that adopts, rejects or modifies an initial decision by an administrative law judge, an initial decision by an administrative law judge that becomes a final decision by operation of N.J.S.A. 52:14B-10 or a decision by an agency head after a hearing conducted in accordance with these rules.

"Finding of fact" means the determination from proof or official notice of the existence of a fact.

"Hearing" means a proceeding conducted by a judge for the purpose of determining disputed issues of fact, law or disposition.

"Initial decision" means the administrative law judge's recommended findings of fact, conclusions of law and disposition, based upon the evidence and arguments presented during the course of the hearing and made a part of the record which is sent to the agency head for a final decision.

"Intervention" means the process by which a non-party may, by motion, obtain all rights and obligations of a party in a case.

"Judge" means an administrative law judge of the State of New Jersey or any other person authorized by law to preside over a hearing in a contested case unless the context clearly indicates otherwise. The term includes the agency head when presiding over a contested case under N.J.S.A. 52:14F-8(b).

"Jurisdiction" means the legal power to hear or decide a case.

"Material fact" means a fact legally consequential to a determination of an issue in the case.

"Mediation" means a proceeding conducted after transmission in which an administrative law judge other than the judge assigned to preside over the hearing attempts to settle or compromise a dispute between opposing parties.

"Motion" means an application to a judge for a ruling or order.

"Official court reporter or official transcription firm" means the entity awarded the contract with the State of New Jersey utilized by the Office of Administrative Law for the provision of court reporting or transcription services.

"Participation" means the process by which a non-party may, by motion, be permitted to take limited part in a proceeding.

"Party" means any person or entity directly involved in a case, including a petitioner, appellant, complainant, respondent, intervenor, or State agency proceeding in any such capacity.

"Petitioner" means the party who is requesting relief or action at the hearing.

"Pleadings" means written statements of the parties' respective claims and defenses. A pleading may be a petition, complaint, answer, order to show cause or any other form permitted by an agency's rules.

"Plenary hearing" means a complete and full proceeding conducted before a judge, providing the parties with discovery, the opportunity to present evidence, to give sworn testimony, to cross-examine witnesses and to make arguments.

"Prehearing conference" means a meeting that may be held in advance of the hearing between the judge, representatives of the parties and, sometimes, the parties to discuss and set out the issues to be decided in the case, how the case will be presented and any other special matters required by the judge to be discussed and resolved in advance of the hearing.

"Presumption" means a rebuttable assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the contested case.

"Principal of a close corporation" means either a substantial shareholder of a corporation that is not publicly owned or an officer or executive employee who is actively involved in managing the business of such a corporation.

"Proceeding on the papers" means a summary proceeding conducted without any personal appearance or confrontation of the parties before the judge. The hearing is conducted through the submission of pleadings, affidavits, records or documents to the Office of Administrative Law for a decision by an administrative law judge.

"Proof" means all of the evidence before the judge relevant to a fact in issue which tends to prove the existence or nonexistence of such fact.

"Pro se" means a person who acts on his or her own behalf without an attorney or other qualified non-lawyer representative.

"Record" means all decisions and rulings of the judge and all of the testimony, documents and arguments presented before, during and after the hearing and accepted by the judge for consideration in the rendering of a decision.

"Relevant evidence" means evidence having any tendency in reason to prove any material fact.

"Respondent" means the party who answers or responds to a request for relief or action.

"Service" means the delivery (by mail or in person) of a paper to a party or any other person or entity to whom the papers are required to be delivered.

"Settlement" means an agreement between parties which resolves disputed matters and may end all or part of the case. Various methods may be utilized to help parties reach agreement, including:

1. Pre-transmission settlement efforts by an agency;

2. Pre-transmission settlement efforts by an administrative law judge at the request of an agency;

3. Mediation by an administrative law judge; and

Post-transmission settlement conferences by an administrative law judge or by a staff attorney employed by the Office of Administrative Law.

"Subpoena" means an official paper that requires a person to appear at a hearing to testify and/or bring documents.

"Telephone hearing" means a proceeding conducted by telephone conference call.

"Uncontested case" means any hearing offered by an agency for reasons not requiring a contested case proceeding under the statutory definition of contested case.

"Withdrawal" means a decision by a party voluntarily relinquishing a hearing request or a raised defense.

History

• Amended by47 N.J.R. 1309(a), Effective 6/15/2015

Subchapter 3 COMMENCEMENT OF CONTESTED CASES; JURISDICTION OF THE OFFICE OF ADMINISTRATIVE LAW

N.J. Admin. Code § 1:1-3.1 Commencement of contested cases in the State agencies

(a) A contested case shall be commenced in the State agency with appropriate subject matter jurisdiction. A contested case may be commenced by the agency itself or by an individual or entity as provided in the rules and regulations of the agency.

(b) A request for a contested case hearing may not be filed with the Office of Administrative Law by the individual or entity requesting the hearing, except as set forth in N.J.A.C. 1:4B-3.1.

History

• Amended by47 N.J.R. 1309(a), Effective 6/15/2015

N.J. Admin. Code § 1:1-3.2 Jurisdiction of the Office of Administrative Law

(a) The Office of Administrative Law shall acquire jurisdiction over a matter only after it has been determined to be a contested case by an agency head and has been filed with the Office of Administrative Law or as otherwise authorized by law, except as provided by N.J.A.C. N.J.S.A. 1:1-17. The Office of Administrative Law shall not receive, hear or consider any pleadings, motion papers, or documents of any kind relating to any matter until it has acquired jurisdiction over that matter, except as provided by N.J.A.C. N.J.S.A. 1:1-17.

(b) When the Office of Administrative Law acquires jurisdiction over a matter that arises from a State agency's rejection of a party's application, and at the hearing the party offers proofs that were not previously considered by the agency, the judge may either allow the party to amend the application to add new contentions, claims or defenses or, if considerations of expediency and efficiency so require, the judge shall order the matter returned to the State agency. If the matter is returned to the agency and thereafter transmitted for hearing, the agency's response to any new contentions, claims or defenses shall be attached to the transmittal form required by N.J.A.C. 1:1-8.2.

(c) Matters involving the administration of the Office of Administrative Law as a State agency are subject to the authority of the Director. In the following matters as they relate to proceedings before the Office of Administrative Law, the Director is the agency head for purposes of review:

1. Disqualification of a particular judge due to interest or any other reason which would preclude a fair and unbiased hearing, pursuant to N.J.A.C. 1:1-14.1 2;

2. Appearances of non-lawyer representatives, pursuant to N.J.A.C. 1:1-5.4;

3. Imposition of conditions and limitations upon non-lawyer representatives, pursuant to N.J.A.C. 1:1-5.5;

4. Sanctions under N.J.A.C. 1:1-14.4 or 14.14 and 14.15 consisting of the assessment of costs, expenses, or fines;

5. Disqualification of attorneys, pursuant to N.J.A.C. 1:1-5.3;

6. Establishment of a hearing location pursuant to N.J.A.C. 1:1-9.1(b); and

7. Appearance of attorneys pro hac vice pursuant to N.J.A.C. 1:1-5.2.

History

• Amended by R.1991 d.34, effective 1/22/1991.
• See: 22 N.J.R. 3278(a), 23 N.J.R. 194(a).
• Added (c)6.
• Amended by R.1991 d.279, effective 6/3/1991 (operative July 1, 1991).
• See: 23 N.J.R. 639(a), 23 N.J.R. 1786(a).
• In (c)4: revised N.J.A.C. citation.
• Amended by R.1996 d.133, effective 3/18/1996.
• See: 27 N.J.R. 609(a), 28 N.J.R. 1503(a).
• In (c)4 added fines.
• Amended by R.2001 d.180, effective 6/4/2001.
• See: 33 N.J.R. 1040(a), 33 N.J.R. 1926(a).
• In (c)4, inserted "or 14.14" following "N.J.A.C. 1:1-14.4"; added (c)7.
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In (c)4, inserted "and 14.15".

N.J. Admin. Code § 1:1-3.3 Return of transmitted cases

(a) A case that has been transmitted to the Office of Administrative Law shall be returned to the transmitting agency if the transmitting agency head so requests in written notice to the Office of Administrative Law and all parties. The notice shall state the reason for returning the case. Upon receipt of the notice, the Office of Administrative Law shall return the case.

(b) A case shall be returned to the transmitting agency by the Clerk of the Office of Administrative Law if, after appropriate notice, neither a party nor a representative of the party appears at a proceeding scheduled by the Clerk or a judge (see N.J.A.C. 1:1-14.4). Any explanations regarding the failure to appear must be in writing and received by the transmitting agency head within 13 days of the date of the Clerk's notice returning the case. A copy of the explanation shall be served on all other parties. If, based on such explanations, the agency head believes the matter should be rescheduled for hearing, the agency head may re-transmit the case to the Office of Administrative Law, pursuant to N.J.A.C. 1:1-8.2.

(c) Upon returning any matter to the transmitting agency, the Clerk shall issue an appropriate notice to the parties which shall advise the parties of the time limit and requirements for explanations as set forth in (b) above.

(d) The agency head may extend the time limit for receiving explanations regarding the failure to appear when good cause is shown.

History

• Amended by R.1989 d.605, effective 12/18/1989.
• See: 21 N.J.R. 3207(a), 21 N.J.R. 3914(a).
• Deleted language stating that an initial decision shall be entered returning the case.
• Amended by R.1991 d.279, effective 6/3/1991 (operative July 1, 1991).
• See: 23 N.J.R. 639(a), 23 N.J.R. 1786(a).
• Added new subsections (b) and (c), recodifying original rule text as subsection (a).
• Amended by R.1991 d.513, effective 10/21/1991.
• See: 23 N.J.R. 1728(a), 23 N.J.R. 3133(a).
• Explanation for failure to appear to be submitted within 13 days.

Subchapter 4 AGENCY RESPONSIBILITY BEFORE TRANSMISSION TO THE OFFICE OF ADMINISTRATIVE LAW

N.J. Admin. Code § 1:1-4.1 Determination of contested case

(a) After an agency proceeding has commenced, the agency head shall promptly determine whether the matter is a contested case. If any party petitions the agency head to decide whether the matter is contested, the agency shall make such a determination within 30 days from receipt of the petition and inform all parties of its determination.

(b) When a question arises whether a particular matter is a contested case, legal advice shall be obtained from the Attorney General's office.

N.J. Admin. Code § 1:1-4.2 Settlement by agencies prior to transmittal to the Office of Administrative Law

If an agency attempts settlement prior to transmitting the matter to the Office of Administrative Law, settlement efforts may be conducted in any manner the agency believes may be appropriate and productive. A copy of the agency's settlement process and procedures shall be filed with the Director. The agency may utilize its own personnel or may request in writing to the Director of the Office of Administrative Law the services of an administrative law judge. An administrative law judge who conducts pre-transmission settlement efforts at the request of an agency will not thereafter be assigned to hear the case if settlement efforts are unsuccessful and the case is transmitted.

History

• Amended by47 N.J.R. 1309(a), Effective 6/15/2015

Subchapter 5 REPRESENTATION

N.J. Admin. Code § 1:1-5.1 Representation

A party may represent him or herself, be represented by an attorney authorized to practice law in this State, or, subject to N.J.A.C. 1:1-5.4 and 1:1-5.5, be represented or assisted by a non-lawyer permitted to make an appearance in a contested case by New Jersey Court Rule R. N.J.A.C. 1:21-1(e) or be represented by a law graduate or student pursuant to R. N.J.A.C. 1:21-3(b). Except as provided by N.J.A.C. 1:1-5.4 and 1:1-5.6, a corporation must be represented by an attorney.

N.J. Admin. Code § 1:1-5.2 Out-of-State attorneys; admission procedures

(a) An attorney from any other jurisdiction, of good standing there, or an attorney admitted in this State, of good standing, who does not maintain a bona fide office for the practice of law, may, at the discretion of the judge, be admitted pro hac vice for the one occasion to participate in the proceeding in the same manner as an attorney authorized to practice in this State pursuant to New Jersey Court Rule R. N.J.A.C. 1:21-1 by complying with the following procedure:

Admission pro hac vice shall be by motion of an attorney authorized to practice in New Jersey. Forms are available from the Office of Administrative Law for this purpose.

2. Each motion seeking admission for the one occasion shall be served on all parties and have attached a supporting affidavit, signed by the attorney seeking admission, which, except for attorneys who are employees of and are representing the United States of America or a sister state, shall state that payment has been made to the New Jersey Lawyers Fund for Client Protection. The affidavit shall state how he or she satisfies each of the conditions for admission, including good cause, set forth in R. N.J.A.C. 1:21-2(a). He or she shall also agree in the affidavit to comply with the dictates of R. N.J.A.C. 1:21-2(b).

3. An annual payment made to the Client's Security Fund and Ethics Financial Committee shall entitle the attorney to appear in subsequent matters during the payment year, provided the attorney otherwise qualifies for admission.

4. An order granting admission shall set forth the limitations upon admission established in R. N.J.A.C. 1:21-2(b).

5. A judge may, at any time during the proceeding and for good cause shown, revoke permission for the attorney to appear.

History

• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Section was "Out-of-state attorneys; admission procedures". In (a), deleted "in this State" following "maintain"; and in (a)2, inserted ", except for attorneys who are employees of and are representing the United States of America or a sister state,", and substituted "New Jersey Lawyers Fund for Client Protection" for "Client's Security Fund and Ethics Financial Committee".

N.J. Admin. Code § 1:1-5.3 Conduct of lawyers

In any case where the issue of an attorney's ethical or professional conduct is raised, the judge before whom the issue has been presented shall consider the merits of the issue raised and make a ruling as to whether the attorney may appear or continue representation in the matter. The judge may disqualify an attorney from participating in a particular case when disqualification is required by the Rules of Professional Conduct or the New Jersey Conflict of Interest Law. If disciplinary action against the attorney is indicated, the matter shall be referred to the appropriate disciplinary body.

N.J. Admin. Code § 1:1-5.4 Representation by non-lawyers; authorized situations, applications, approval procedures

(a) In conformity with New Jersey Court Rule R. N.J.A.C. 1:21-1(f), the following non-lawyers may apply for permission to represent a party at a contested case hearing:

1. Persons whose appearance is required by Federal law;

2. State agency employees;

3. County or municipal welfare agency employees;

4. Legal service paralegals or assistants;

5. Close corporation principals;

6. Union representatives in Civil Service and Public Employment Relations Commission cases;

7. Individuals representing parents or children in special education proceedings;

8. County or local government employees in Civil Service cases; and

Individuals representing claimants or employers before the Appeal Tribunal or Board of Review of the Department of Labor and Workforce Development.

(b) The non-lawyer applicants in (a) above may apply for permission to appear by supplying the following information and by complying with the following procedures:

1. Oral applications at the hearing may be made in Division of Family Development, Division of Medical Assistance and Health Services, Division of Youth and Family Services and Department of Labor Vocational Rehabilitation cases.

i. At the hearing, the non-lawyer applicant shall certify that he or she is not a suspended or disbarred attorney and that he or she is not receiving a fee for the appearance.

ii. At the hearing, the judge shall determine that the non-lawyer applicant seeking to represent a recipient or applicant for services fulfills the appearance requirements of Federal law.

iii. At the hearing, the non-lawyer applicant seeking to represent a county or municipal welfare agency shall certify that he or she is an agency staff person with knowledge of the matter in controversy, has been assigned to represent the agency in the case and that the county or municipal counsel is not providing representation in the particular matter. The non-lawyer applicant shall also state his or her position at the agency and the name, title, business address and telephone number of his or her supervisor.

iv. At the hearing, a non-lawyer applicant seeking to represent the Division of Economic Assistance, the Division of Medical Assistance and Health Services or the Division of Youth and Family Services shall certify that he or she is an employee of the agency he or she seeks to represent; his or her position at the agency; his or her supervisor at the agency; his or her supervisor's position, business address and telephone number; an explanation of his or her special expertise or experience in the matter in controversy; and that he or she has been assigned to represent the agency in the case and the Attorney General will not provide legal representation.

2. Oral application at the hearing may be made in public employment relations proceedings. At the hearing, the non-lawyer applicant shall certify that he or she is not a suspended or disbarred attorney and that he or she is not receiving a fee for the appearance.

3. Oral application at the hearing may be made in cases before the Appeals Tribunal or Board of Review of the Department of Labor and Workforce Development. At the hearing, the non-lawyer applicant shall certify that he or she is not a suspended or disbarred attorney and that he or she is not receiving a fee for the appearance.

4. A written Notice of Appearance/Application on forms supplied by the Office of Administrative Law shall be required in cases where a non-lawyer employee seeks to represent a State agency; in Civil Service cases, where a union representative seeks to represent a State, county or local government employee; where a county or local government employee seeks to represent the appointing authority; where a non-lawyer seeks to represent a party in a special education hearing; where a principal seeks to represent a close corporation; and where a non-lawyer from a legal services program seeks to represent an indigent. A non-lawyer from a legal services program seeking to represent a recipient or applicant for services in Division of Economic Assistance, Division of Medical Assistance and Health Services and Division of Youth and Family Services cases may make oral application to represent the recipient or applicant by complying with the requirements of (b)1 above. Forms may be obtained from the Clerk of the Office of Administrative Law or through the State of New Jersey Office of Administrative Law website http://www.state.nj.us/oal/.

i. For non-lawyer employees seeking to represent a State agency, the Notice shall include a certification that the non-lawyer is an employee of the State agency he or she seeks to represent; his or her position at the agency; his or her supervisor at the agency; his or her supervisor's position, business address and telephone number; and an explanation of his or her special expertise or experience in the matter in controversy. The Notice shall also contain a certification, indicating that the employee has been assigned to represent the agency in the case and that the Attorney General will not provide legal representation.

ii. For non-lawyers from legal services programs, the Notice shall include a certification that he or she is a paralegal or legal assistant; the name and address of the Legal Services Program of which he or she is a part; and the name, business address, telephone number and signed authorization of a Legal Services attorney who supervises the applicant.

iii. The non-lawyer union representative shall include in his or her Notice a certification that he or she is an authorized representative of a labor organization; that the labor organization is the duly authorized representative of the represented employee's collective bargaining unit; and the name, title, business address and telephone number of his or her supervisor.

iv. In special education hearings, the non-lawyer applicant shall include in his or her Notice an explanation certifying how he or she has knowledge or training with respect to handicapped pupils and their educational needs so as to facilitate the presentation of the claims or defenses of the parent or child. The applicant shall describe his or her relevant education, work experience or other qualifications.

v. For non-lawyer employees seeking to represent a county or local government appointing authority in a Civil Service case, the notice shall include a certification that the non-lawyer is an employee of the county or local government appointing authority; his or her position with the appointing authority; his or her supervisor's position; business address and telephone number; and an explanation of his or her special expertise or experience in the matter in controversy. The notice shall also contain a certification indicating that the employee has been assigned to represent the appointing authority in the case and that the legal representative for the county or locality does not provide representation in the matter.

vi. In cases where principal seeks to represent a close corporation, the non-lawyer applicant shall demonstrate in his or her notice how he or she qualifies as a principal of a close corporation as defined in N.J.A.C. 1:1-2.1.

vii. Any non-lawyer applicant filing a Notice of Appearance/Application shall submit a certification with the Notice stating that he or she is not a disbarred or suspended attorney and is not receiving a fee for the appearance.

viii. The Notice of Appearance/Application must be signed by the non-lawyer applicant. Notices shall be filed with the Clerk if a judge has not yet been assigned to the matter and shall be filed with the judge if a judge has been assigned and shall be served on all parties no later than 10 days prior to the scheduled hearing date. In Special Education cases, the Notice of Appearance/Application shall be filed with the Clerk and served on all parties no later than five days prior to the scheduled hearing date.

ix. The judge may require the applicant to supply additional information or explanation of the items specified above as applicable, or may require the applicant to supply evidence of the statements contained in the Notice.

History

• Amended by R.1991 d.296, effective 6/17/1991.
• See: 23 N.J.R. 1053(a), 23 N.J.R. 1919(a).
• Eliminated provision that a DAG had to "sign off" on agency non-lawyer representation; delegated authority to agencies.
• Amended by R.1992 d.213, effective 5/18/1992.
• See: 24 N.J.R. 321(a), 24 N.J.R. 1873(b).
• Revised text.
• Amended by R.1997 d.158, effective 4/7/1997.
• See: 29 N.J.R. 282(a), 29 N.J.R. 1295(a).
• In (a)6, inserted reference to Public Employment Relations Commission; inserted (a)8; in (b)1iv, amended subsection reference; inserted new (b)2; recodified former (b)2 as (b)3; in (b)3, inserted "where a county or local government employee seeks to represent the appointing authority"; inserted (b)3v; and recodified former (b)3v through (b)3viii as (b)3vi through (b)3ix.
• Amended by R.1997 d.474, effective 11/3/1997.
• See: 29 N.J.R. 3758(a), 29 N.J.R. 4677(a).
• In (b)1, substituted "Family Development" for "Economic Assistance", and added "and Department of Labor Vocational Rehabilitation cases".
• Amended by R.2002 d.198, effective 7/1/2002.
• See: 34 N.J.R. 983(a), 34 N.J.R. 2309(a).
• In (b)3, added the second sentence in the introductory paragraph, and added an N.J.A.C reference in vi.
• Amended by R.2005 d.106, effective 4/4/2005.
• See: 36 N.J.R. 3956(a), 37 N.J.R. 1015(a).
• In (a), added 9; in (b), substituted "(b)4i" for "(b)3i" following "set forth in" in 1iv, added new 3, recodified former 3 as 4.
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In the introductory paragraph of (a), substituted "(f)" for "(e)"; in (b)1i, (b)1iii, (b)2, and (b)3, substituted "certify" for "state"; rewrote (b)1iv; in (b)4, transferred the former second sentence to the end; in (b)4i, (b)4ii, (b)4iii, and (b)4v, substituted "certification" for "statement" throughout; in (b)4iv, inserted a comma following "hearings", substituted "certifying" for the first occurrence of "of" and deleted "related to the child's condition" from the end; in (b)4viii, inserted "if a judge has not yet been assigned to the matter and shall be filed with the judge if a judge has been assigned" and "shall be" preceding "served", and inserted the last sentence; and in (b)4ix, substituted "judge" for "Clerk", and deleted the final two sentences.

N.J. Admin. Code § 1:1-5.5 Conduct of non-lawyer representatives; limitations on practice

(a) The presiding judge, unless precluded by Federal law, may determine at any time during the proceeding that a specific case is not appropriate for representation by a non-lawyer representative. The judge's determination may be based either on the lack of appropriate experience or expertise of the particular non-lawyer representative, or the complexity of the legal issues or other factors which make the particular case inappropriate for a non-lawyer representative. The judge shall implement a determination to preclude non-lawyer representation by informing the parties of the decision and the reasons therefor. With respect to a county, local or State agency or a close corporation, the judge may require the party to obtain legal representation. With respect to an individual, the judge may require the individual either to obtain a new non-lawyer, to represent himself or herself or to obtain legal representation.

(b) The presiding judge may revoke any non-lawyer's right to appear in a case if and when the judge determines that a material statement is incorrect in any Notice of Appearance/Application or in any oral application by a non-lawyer.

(c) Non-lawyer representatives shall be subject to the Uniform Administrative Procedure Rules, including the sanctions provided in N.J.A.C. 1:1-14.1 4 and 14.15. If the judge determines that an incorrect statement in an oral application or Notice of Appearance/Application was an intentional misstatement, or that the non-lawyer representative has unreasonably failed to comply with any order of a judge or with any requirement of this chapter, the judge may impose the sanctions provided under N.J.A.C. 1:1-14.1 4 and 14.15, which may include:

1. In the case of a State, county or local agency employee, reporting any inappropriate behavior to the agency for possible disciplinary action;

2. A determination by the presiding judge that the non-lawyer representative shall be excluded from a particular hearing; and,

3. A recommendation by the presiding judge to the agency head that a particular non-lawyer representative be permanently excluded from administrative hearings before that agency.

(d) A non-lawyer may not be precluded from providing representational services solely because the non-lawyer is also appearing as a witness in the matter.

(e) In general, a non-lawyer representative shall be permitted at the hearing to submit evidence, speak for the party, make oral arguments, and conduct direct examinations and cross-examinations of witnesses.

1. In the interest of a full, fair, orderly and speedy hearing, the judge may at any time condition, limit or delineate the type or extent of representation which may be rendered by a non-lawyer. Conditions or limits may include:

i. Requiring any examination and cross-examination by the non-lawyer to be conducted through the judge;

ii. Requiring questions from the non-lawyer to be presented to the judge prior to asking;

iii. Requiring the party to speak for him or herself; or

iv. Revoking the right of the non-lawyer to appear if the judge finds that the proceedings are being unreasonably disrupted or unduly delayed because of the non-lawyer's participation.

(f) In settlements, a non-lawyer may not sign a consent order or stipulation for a party, except that non-lawyer representatives of State agencies, county or municipal welfare agencies or close corporations who have been authorized to agree to the terms of a particular settlement by the represented entity may sign consent orders or stipulations.

(g) Non-lawyer representatives are expected to be guided in their behavior by appropriate standards of conduct, such as contained in the following Rules of Professional Conduct for attorneys: RPC 1.2 (Scope of Representation); RPC 1.3 (Diligence); RPC 1.4 (Communication); RPC 3.2 (Expediting Litigation); RPC 3.3 (Candor Towards the Tribunal); RPC 3.4 (Fairness to Opposing Party and Counsel); RPC 3.5 (Impartiality and Decorum of the Tribunal); and RPC 4.1 (Truthfulness in Statements to Others). Non-lawyer representatives who are state officers or employees must also comply with the requirements of the New Jersey Conflicts of Interest Law, in particular N.J.S.A. 52:13D-16. For failure to comply with these standards, the judge may revoke a non-lawyer representative's right to appear in a case or may order sanctions as provided in (c) above.

History

• Amended by R.1989 d.158, effective 3/20/1989.
• See: 20 N.J.R. 2845(a), 21 N.J.R. 749(a).
• Exceptions allowing non-lawyer representatives to sign consent orders or stipulations, added at (f).
• Correction in (c): changed N.J.A.C. 1:11-4.4 to N.J.A.C. 1:1-14.4.
• Amended by R.1991 d.279, effective 6/3/1991 (operative July 1, 1991).
• See: 23 N.J.R. 639(a), 23 N.J.R. 1786(a).
• In (c): revised N.J.A.C. citation.
• Amended by R.1992 d.213, effective 5/18/1992.
• See: 24 N.J.R. 321(a), 24 N.J.R. 1873(b).
• Added (g).
• Amended by R.1997 d.158, effective 4/7/1997.
• See: 29 N.J.R. 282(a), 29 N.J.R. 1295(a).
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In (c), inserted "and 14.15" twice.

N.J. Admin. Code § 1:1-5.6 Appearance without representation: State agencies

(a) In those cases where a State agency does not send a representative who has been approved under N.J.A.C. 1:1-5.4 to a hearing, but merely rests its case on papers presented to the judge:

1. The agency shall include in the transmittal form a statement which verifies the agency's intention to proceed without a representative qualified under N.J.A.C. 1:1-5.4 and lists the papers upon which the agency intends to rely.

2. The judge shall, where appropriate, accept into the hearing record the agency's papers.

History

• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Section was "Appearance without representation: State agencies or county or municipal welfare agencies; corporations". In the introductory paragraph of (a), deleted "or a county or municipal welfare agency" following "State agency" and "and/or on witnesses" preceding "presented to the judge:"; in (a)1, deleted "and/or witnesses" preceding "upon which"; rewrote (a)2; and deleted (b).

Subchapter 6 PLEADINGS

N.J. Admin. Code § 1:1-6.1 Pleading requirements

(a) Specific pleading requirements are governed by the agency with subject matter jurisdiction over the case. Except as otherwise provided by this subchapter, parties in contested cases should refer to the rules of the appropriate agency for guidance.

(b) Pleadings shall be filed as required by the rules of the agency with subject matter jurisdiction over the case.

(c) Pleadings shall be served in the manner permitted by N.J.A.C. 1:1-7.1(a) on all parties and on any other person required by the rules of the agency with subject matter jurisdiction over the case.

N.J. Admin. Code § 1:1-6.2 Amendment of pleadings

(a) Unless precluded by law or constitutional principle, pleadings may be freely amended when, in the judge's discretion, an amendment would be in the interest of efficiency, expediency and the avoidance of over-technical pleading requirements and would not create undue prejudice.

(b) A judge in granting pleading amendments may permit a brief continuance to allow an opposing party additional preparation time.

N.J. Admin. Code § 1:1-6.3 Public officers; death or separation from office

When any public officer who is a party to a contested case, whether or not mentioned by name in the pleadings, dies, resigns or for any reason ceases to hold office, his or her successor in office shall be deemed to have been substituted in his or her place. However, on motion, the judge may otherwise order or may specifically order the retention as a party of the predecessor in office.

Subchapter 7 SERVICE AND FILING OF PAPERS; FORMAT

N.J. Admin. Code § 1:1-7.1 Service; when required; manner

(a) Service shall be made in person; by certified mail, return receipt requested; by ordinary mail; or in any manner which is designed to provide actual notice to the party or person being served.

(b) Any paper filed shall be served in the manner provided by (a) above upon all attorneys or other representatives and upon all parties appearing pro se, either before filing or promptly thereafter unless otherwise provided by order.

(c) Service by mail shall be complete upon mailing.

(d) The standards of personal service contained in R. N.J.S.A. 4:4-4 of the New Jersey Court Rules shall apply to contested cases when personal service is required and this section is inapplicable.

History

• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In (a), deleted "or" preceding "by certified mail" and preceding "by ordinary mail".

N.J. Admin. Code § 1:1-7.2 Proof of publication and service

(a) Whenever these rules or the applicable rules of any agency provide for publication, mailing or posting of public notices in contested cases, proofs thereof shall be filed within 20 days after the publication, mailing or posting.

(b) Except for service by publication or as otherwise required by this chapter or by State or Federal statute, proof of service shall not be necessary unless a question of notice arises.

(c) Where necessary to prove service, proof may be made by an acknowledgment of service signed by the attorney, any other representative or party, or by an affidavit of the person making service, or by a certificate of service appended to the paper to be filed and signed by the attorney or other representative for the party making service. Where appropriate, other competent proof that actual and timely notice existed of the contents of the paper may be considered as a substitute for service.

N.J. Admin. Code § 1:1-7.3 Filing; copies

(a) A paper shall be filed with the Clerk if the matter has not been assigned to a judge, or, if a judge has been assigned, with the judge assigned to the case.

(b) The Clerk or the judge, upon receiving papers for filing that do not conform to the requirements of these rules, may either return the papers with instructions for refiling or cure the defects and accept the papers for filing.

(c) The filer shall submit the original of all papers with the Office of Administrative Law. If the filer submits an additional copy of the paper to be filed with a self-addressed, stamped envelope, the Clerk or judge will return the paper to the filer marked with the date of filing. No additional copies of any paper shall be filed.

(d) Evidence of filing shall be a notation showing the date of filing. When a paper is filed with a judge, the notation shall also identify the judge. A copy of such papers shall be forwarded by the filing party to the Clerk immediately.

History

• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Rewrote (a); in (c), inserted "or judge"; and added (d).
• Amended by R.2012 d.121, effective 7/2/2012.
• See: 44 N.J.R. 541(a), 44 N.J.R. 1879(a).
• In (c), rewrote the first sentence and inserted the last sentence.

N.J. Admin. Code § 1:1-7.4 Format of papers

(a) Every paper filed shall contain:

1. The Office of Administrative Law docket number of the proceeding or, if the case has not been transmitted, the agency docket number;

2. The name, address and telephone number of the person who prepared the paper; and

3. A caption setting forth the title of the proceeding and a brief designation describing the paper filed.

(b) All papers shall be on 8 1/2 " x 11" stock of customary weight and quality insofar as is practicable.

N.J. Admin. Code § 1:1-7.5 Filing by facsimile transmission

(a) A paper may be filed by facsimile transmission unless prohibited by the judge.

(b) Facsimile transmissions must comply with all requirements of this subchapter except N.J.A.C. 1:1-7.3(c) and 1:1-7.4(b).

(c) The party filing a document by facsimile transmission must include a certification indicating the method of service upon each party and stating that the original document is available for filing if requested by court or a party.

(d) Facsimile transmittals are filed as of the date of receipt by the Clerk or the judge, provided that the complete transmittal is received by 5:00 P.M. Facsimile transmittals received after 5:00 P.M. shall be deemed to be filed as of the next business day.

(e) A party requesting a facsimile transmittal from the Clerk or the judge shall be assessed a charge at the rate provided in the Open Public Records Act, N.J.S.A. 47:1A-1 et seq.

History

• New Rule, R.1992 d.213, effective 5/18/1992.
• See: 24 N.J.R. 321(a), 24 N.J.R. 1873(b).
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In (a), substituted "unless prohibited by the judge." for "if:"; deleted (a)1 and (a)2; and in (e), substituted "Open Public Records Act" for "Right to Know Law".

Subchapter 8 FILING AND TRANSMISSION OF CONTESTED CASES IN THE OFFICE OF ADMINISTRATIVE LAW

N.J. Admin. Code § 1:1-8.1 Agency filing with the Office of Administrative Law; settlement efforts

(a) After the parties have complied with all pleading requirements, the agency shall within 30 days either file the case with the Clerk of the Office of Administrative Law in the manner provided by N.J.A.C. 1:1-8.2 or retain it under the provisions of N.J.S.A. 52:14F-8 and notify all parties of the decision to retain.

(b) During the 30-day period in (a) above, an agency may attempt settlement in accordance with N.J.A.C. 1:1-4.2. At the conclusion of the 30-day period, unless all parties agree to continue the settlement efforts, the matter shall be either filed with the Office of Administrative Law or further retained under the provisions of N.J.S.A. 52:14F-8. After the 30th day of an agency's settlement efforts, any party may request that the agency transmit the matter to the Office of Administrative Law, provided that the agency does not intend to retain the case under N.J.S.A. 52:14F-8.

(c) An agency may file a contested case with the Office of Administrative Law immediately if the agency determines that settlement efforts would be inappropriate or unproductive.

N.J. Admin. Code § 1:1-8.2 Transmission of contested cases to the Office of Administrative Law

(a) In every proceeding to be filed in the Office of Administrative Law, the agency shall complete a transmittal form, furnished by the Clerk of the Office of Administrative Law, containing the following information:

1. The name of the agency transmitting the case;

The name, address and telephone number of the agency's transmitting officer;

3. The name or title of the proceeding, including the designation petitioner/respondent or appellant/appellee when appropriate;

4. The agency docket or reference number;

5. A description of the nature of the case, including a statement of the legal authority and jurisdiction upon which the agency action is based or under which the hearing is to be held, a reference to particular statutes and rules involved as well as a brief summary of the matters of fact and law asserted. If this information is included in a pleading that is attached to the transmittal form pursuant to (b) below, the agency may refer to the pleading in order to satisfy this requirement;

6. An indication as to whether the agency has attempted settlement;

7. An estimate of the total time required for the hearing;

8. Whether a court stenographer is requested. If a stenographer is not requested, the Office of Administrative Law will provide an audiotape recording for the hearing. When a stenographer is requested by the transmitting agency, the appearance fee shall be paid by the transmitting agency. When the transmitting agency notifies the Clerk that a court stenographer is required because a party so requests, the appearance fee shall be paid by that party;

9. Anticipated special features or requirements, including the need for emergent relief, discovery, motions, prehearing conference or conference hearing and whether the case is a remand;

10. The names, addresses and telephone numbers, and e-mail addresses if available, of all parties and their attorneys or other representatives, with each person clearly designated as either party or representative. For any party that is a corporation, the transmitting agency shall provide the name, address and telephone number, and e-mail address if available, of the corporation's attorney or non-lawyer representative qualified under N.J.A.C. 1:1-5.4(b)2 v.

11. A request for a barrier-free hearing location if it is known that a handicapped person will be present; and

12. The names of any other agencies claiming jurisdiction over either the entire or any portion of the factual dispute presented in the transmitted contested case.

13. The transmitting agency may provide the name and address of one additional person other than a party or representative to receive a copy of all Clerk's notices in the case. If no person is designated, the OAL shall send an informational copy of notices to the agency's transmitting officer.

(b) The agency shall attach all pleadings to the transmittal form.

(c) The agency may affix to the completed transmittal form only documents which have been exchanged between the parties prior to transmission of the case to the Office of Administrative Law. If the agency affixes to the transmittal form documents that have not been exchanged between the parties, the agency shall either serve these documents upon the parties or offer them to the parties and shall inform the Clerk of such action in the transmittal form.

(d) If there was a previous hearing in a matter which upon appeal is subject to de novo review, the agency shall not transmit the record of the previous hearing to the Office of Administrative Law.

(e) If an agency has transmitted a case to the Office of Administrative Law, any party or agency aware that another agency is claiming jurisdiction over any part of the transmitted case shall immediately notify the Office of Administrative Law, the other parties and affected agencies of the second jurisdictional claim.

(f) The completed transmittal form and one copy of any attachments shall be filed with the Clerk of the Office of Administrative Law.

(g) Where the case involves a permitting or licensing decision of the Department of Environmental Protection, the Department shall be required to produce and certify a permitting record within 30 days after the filing of the contested case. This deadline may be extended by an administrative law judge upon the unanimous agreement of the parties. The production and certification of the Department's permitting record, in accordance with this subsection, shall not limit the ability of the parties to further supplement the record. The Department shall file the certified record with the administrative law judge. If a case has not yet been assigned, the certified record shall be filed with the Clerk.

History

• Amended by47 N.J.R. 1309(a), Effective 6/15/2015

N.J. Admin. Code § 1:1-8.3 Receipt by Office of Administrative Law of transmitted contested case; filing; return of improperly transmitted cases

(a) Upon receipt of a properly transmitted contested case the Clerk shall mark the case as having been received and filed as of a particular date and time. Upon filing, the Clerk shall assign an Office of Administrative Law docket number to the contested case.

(b) The Clerk upon receiving a contested case that has not been transmitted in accordance with this subchapter may either return the case with instructions to the agency for retransmission or cure the transmission defects and accept the matter for filing.

Subchapter 9 SCHEDULING; CLERK'S NOTICES; ADJOURNMENTS; INACTIVE LIST

N.J. Admin. Code § 1:1-9.1 Scheduling of proceedings

(a) When a contested case is filed, it may be scheduled for mediation, settlement conference, prehearing conference, proceeding on the papers, telephone hearing, plenary hearing or other proceeding.

(b) To schedule a proceeding, the Clerk or the judge's secretary may contact the parties to arrange a convenient date, time and place or may prepare and serve notice without first contacting the parties. Proceedings shall be scheduled for suitable locations, taking into consideration the convenience of the witnesses and the parties, as well as the nature of the case and proceedings.

(c) The Clerk may schedule a settlement conference whenever such a proceeding may be appropriate and productive.

(d) A prehearing conference may be scheduled in any case whenever necessary to foster an efficient and expeditious proceeding.

(e) A proceeding on the papers may be scheduled in accordance with N.J.A.C. 1:1-14.8 in any class of suitable cases which the Director of the Office of Administrative Law and the transmitting agency agree could be lawfully decided on the papers.

(f) A telephone hearing may be scheduled for any case when the judge so directs, subject to the requirements of N.J.A.C. 1:1-15.8(e).

(g) The Director may, on a temporary basis and when required by exigent circumstances, schedule hearings notwithstanding deadlines otherwise set forth in statute.

History

• Amended by47 N.J.R. 1309(a), Effective 6/15/2015

N.J. Admin. Code § 1:1-9.2 Cases commenced by order to show cause

When an agency head commences an action by order to show cause, the agency head may, prior to service and filing of the order to show cause, contact the Clerk, who will assign a judge and establish the time, place and date for a hearing on the matter. The agency shall insert in the pleading the information provided by the Clerk and promptly serve and file it in accordance with N.J.A.C. N.J.S.A. 1:1-7.

N.J. Admin. Code § 1:1-9.3 Priority scheduling

Priority in scheduling shall be given where requirements of law impose expedited time frames for disposition of a case. In all other cases, the transmitting agency or any party may make special scheduling requests to the Clerk.

N.J. Admin. Code § 1:1-9.4 Accelerated proceedings

(a) Any party may apply for accelerated disposition of a case. The application shall be in writing, on notice to all parties, and shall include the reasons for the request and a statement that all parties consent to acceleration.

(b) Applications for acceleration shall be filed as soon as circumstances meriting such action are discovered. Whenever possible, applications for acceleration by a transmitting agency shall be filed upon transmittal of the case and applications for acceleration by any other party shall be filed with the pleadings in the case.

(c) Applications for acceleration shall be made to the Director until such time as a party has appeared before a judge in person, by telephone, or in writing for a motion, prehearing or hearing. The Director may decide the request for acceleration or may assign the motion to a judge for determination. If a party has appeared before a judge in person, by telephone, or in writing for a motion, prehearing, or hearing, applications for acceleration shall be made to the judge.

(d) If the transmitting agency is a party and the agency either requests accelerated proceedings or concurs in a request for acceleration, the agency will be deemed to have agreed to abide by the 15-day decision deadline in (e)8 below. If the transmitting agency is not a party, the party requesting acceleration must secure from the transmitting agency agreement to render its final decision within 15 days as provided in (e)8 below.

(e) If the transmitting agency agrees to the 15-day decision deadline, all parties consent and the Director or the judge assigned to the case then finds that there is good cause for accelerating the proceedings, the judge shall schedule an accelerated hearing date and the case shall proceed in the following manner:

1. Formal discovery shall not be permitted, although parties may voluntarily exchange information, provided it does not delay the accelerated disposition of the case.

2. No mediation, prehearing conference or settlement conference shall be scheduled or conducted unless directed by the presiding judge.

3. Except for extraordinary circumstances establishing good cause, no adjournments shall be granted.

4. Prehearing motions shall not be permitted unless requested by the presiding judge.

5. Post-hearing submissions shall not be accepted except for the purpose of expressing the terms of a settlement or when requested by the presiding judge.

6. Initial decisions shall be issued within 15 days after the hearing is concluded.

7. Exceptions to the initial decision must be filed with the agency no later than six days after the initial decision was mailed to the parties. No replies or cross-exceptions are permitted.

8. Final decisions shall be entered within 15 days after receipt of the initial decision.

History

• Amended by R.1990 d.483, effective 9/17/1990.
• See: 22 New Jersey Register 2067(a), 22 New Jersey Register 3003(b).
• At (c)7, changed filing time from three days to six days after the initial decision was mailed to the parties.
• Amended by R.1994 d.173, effective 4/4/1994.
• See: 26 New Jersey Register 284(a), 26 New Jersey Register 1493(a).

N.J. Admin. Code § 1:1-9.5 Notices

(a) Upon acceptance of a contested case for filing, the Office of Administrative Law shall notify the transmitting agency and all parties of the case's filing date and the Office of Administrative Law docket number. This notice shall include a description of the nature of the proceeding, a reference to the controlling hearing procedures, including discovery, and a reference to the right of persons to represent themselves or to be represented by any attorney or a qualified non-lawyer in certain situations. The Office of Administrative Law may also include in this notice any information deemed instructive or helpful to the parties and may combine this notice with any other notice, including the notice of hearing.

(b) The Office of Administrative Law shall provide all parties with timely notice of any mediation, settlement conference, prehearing conference, proceeding on the papers, telephone hearing, plenary hearing or other proceeding, except that in emergency relief proceedings pursuant to N.J.A.C. 1:1-12.6 the Office of Administrative Law may require the moving party to provide appropriate notice. Each notice shall apprise the parties of the presiding judge and the date, time and place of the proceeding. The Office of Administrative Law may also include in any proceeding notice any information deemed instructive or helpful to the parties.

(c) Notice shall be by regular mail, except that when emergent needs so require and the law permits, notice of proceedings may be by telephone or any other method reasonably certain to provide actual notice to the parties.

(d) All notices shall be written in plain language. See generally, N.J.S.A. 56:12-1 et seq.

(e) Each notice shall prominently display a telephone number where parties can obtain further assistance.

(f) All parties shall receive subsequent notices of all proceedings in any contested case. Subsequent notices shall apprise the parties of the date, time, place and nature of a proceeding and may be either written or effected by a statement made on the record.

History

• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Section was "Clerk's notices". In (a) and (b), substituted "Office of Administrative Law" for "Clerk" throughout and "deemed" for "he or she deems"; rewrote (c); and in (d), deleted "Clerk's" following "All".

N.J. Admin. Code § 1:1-9.6 Adjournments

(a) In the following matters, applications for adjournments shall be made to the Clerk until such time as a party has appeared before the judge in person, by telephone or in writing for a motion, prehearing or hearing; thereafter, applications for adjournments shall be made to the judge:

1. Hearings in Human Services (except Medical Assistance provider and rate); Motor Vehicle; Consumer Affairs Lemon Law cases;

2. Settlement conferences in Alcoholic Beverage Control, Department of Personnel civil service and Community Affairs cases.

(b) In all cases other than those specified in (a) above, applications for adjournments shall be made to the Clerk until such time as a judge has been assigned. Thereafter, applications for adjournments shall be made to the judge.

(c) Applications may be made in writing or by telephone. Telephone applications for adjournments which are granted must be confirmed in writing by the party requesting the adjournment. All adjournments that are granted will be granted for the shortest period possible and to a definite date.

(d) Adjournments will be granted only for good cause.

(e) Adjournments will not be granted to complete discovery if parties have not timely complied with N.J.A.C. 1:1-10.4.

(f) The fact that a party obtains the consent to an adjournment of his or her adversary will not always result in the granting of the adjournment.

(g) An attorney with a conflicting engagement in a court shall call the Clerk or judge as soon as the conflict is discovered. Attorneys should not assume that such conflicts will always result in an adjournment.

(h) When the judge or the Clerk requests, a party obtaining an adjournment will be responsible for securing from his or her adversary consent to a new date.

(i) All parties to an adjournment will be responsible for giving prompt notice to their witnesses as to the adjournment and the new scheduled date.

(j) When granting an adjournment after an untimely application, a judge may order any of the sanctions contained in N.J.A.C. 1:1-14.1 4 and 14.15.

History

• Amended by R.1991 d.44, effective 2/4/1991.
• See: 22 N.J.R. 3278(b), 23 N.J.R. 293(a).
• In (a): added introductory text specifying special cases.
• Added new subsection (b), recodifying (b)-(f) as (d)-(h) with no change in text.
• Recodified (g) as (i), deleting text referring to Clerk's confirmation of new date.
• Recodified (h) as (j), revising N.J.A.C. reference.
• Administrative Correction to (j).
• See: 23 N.J.R. 687(a).
• Amended by R.1991 d.279, effective 6/3/1991 (operative July 1, 1991).
• See: 23 N.J.R. 639(a), 23 N.J.R. 1786(a).
• In (j): revised N.J.A.C. citation.
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Rewrote (a); in (c), substituted ". Telephone" for "; telephone"; in (d), substituted "for good cause" for "in exceptional situations which could not have been reasonably foreseen or prevented"; and in (j), inserted "and 14.15".

N.J. Admin. Code § 1:1-9.7 Inactive list

(a) Where a party to a pending case demonstrates good cause, that party or his or her representative may move to place the case on the inactive list. A judge, as a condition to placing a matter on the inactive list, shall consider the public interest in the matter and may impose conditions appropriate to the case.

1. Upon affidavit or other adequate proof, the judge may determine to place the case on the inactive list for as brief a period as possible not to exceed six months.

2. The Clerk shall maintain the inactive list and shall return the case to an active status after the specified period has expired unless, upon motion and further proof, the judge determines that the party is still with just excuse unable to proceed.

3. A judge may order a case to continue on the inactive list for successive brief periods, each not to exceed six months.

4. All parties and the agency shall be notified of any action taken under this section.

(b) Cases may not be placed on the inactive list to await an appellate court decision involving other parties unless the appellate decision is so imminent and directly relevant to the matter under dispute so that some reasonable delay would be justified.

History

• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In (a), substituted "demonstrates good cause" for "is mentally or physically incapable of proceeding or is with other just excuse unable to proceed without substantial inconvenience or inordinate expense"; in (a)4, substituted "All parties and the agency shall be notified" for "The Clerk shall notify all parties and the agency"; and in (b), inserted "so" preceding "that".

Subchapter 10 DISCOVERY

N.J. Admin. Code § 1:1-10.1 Purpose and function; policy considerations; public documents not discoverable

(a) The purpose of discovery is to facilitate the disposition of cases by streamlining the hearing and enhancing the likelihood of settlement or withdrawal. These rules are designed to achieve this purpose by giving litigants access to facts which tend to support or undermine their position or that of their adversary.

(b) It is not ground for denial of a request for discovery that the information to be produced may be inadmissible in evidence if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(c) In considering a discovery motion, the judge shall weigh the specific need for the information, the extent to which the information is within the control of the party and matters of expense, privilege, trade secret and oppressiveness. Except where so proceeding would be unduly prejudicial to the party seeking discovery, discovery shall be ordered on terms least burdensome to the party from whom discovery is sought.

(d) Discovery shall generally not be available against a State agency that is neither a party to the proceeding nor asserting a position in respect of the outcome but is solely providing the forum for the dispute's resolution.

History

• Amended by R.2004 d.287, effective 8/2/2004.
• See: 36 N.J.R. 1857(a), 36 N.J.R. 3523(a).
• Deleted former (d) and recodified former (e) as new (d).

N.J. Admin. Code § 1:1-10.2 Discovery by notice or motion; depositions; physical and mental examinations

(a) Any party may notify another party to provide discovery by one or more of the following methods:

1. Written interrogatories;

2. Production of documents or things, including electronically stored information provided that a party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. The party from whom discovery is sought shall demonstrate that the electronically stored information is not reasonably accessible because of undue burden or cost;

3. Permission to enter upon land or other property for inspection or other purposes; and

4. Requests for admissions.

(b) Any party may request an informal, nontranscribed meeting with witnesses for another party in order to facilitate the purposes of discovery as described in N.J.A.C. 1:1-10.1. The other party and his or her representative must be given notice and the opportunity to be present. Such meetings are voluntary and cannot be compelled. Failure to agree to such meetings will not be considered good cause for permitting depositions pursuant to (c) below.

(c) Depositions upon oral examination or written questions and physical and mental examinations are available only on motion for good cause. In deciding any such motion, the judge shall consider the policy governing discovery as stated in N.J.A.C. 1:1-10.1 and shall weigh the specific need for the deposition or examination; the extent to which the information sought cannot be obtained in other ways; the requested location and time for the deposition or examination; undue hardship; and matters of expense, privilege, trade secret or oppressiveness. An order granting a deposition or an examination shall specify a reasonable time during which the deposition or examination shall be concluded. The parties may agree to conduct depositions without the necessity of filing a motion; however, the taking of any depositions shall not interfere with the scheduled hearing date.

(d) A party taking a deposition or having an examination conducted who orders a transcript or a report shall promptly, without charge, furnish a copy of the transcript or report to the witness deposed or examined, if an adverse party, and, if not, to any adverse party. The copy so furnished shall be made available to all other parties for their inspection and copying.

History

• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Rewrote (a)2; and in (c), inserted the final sentence.

N.J. Admin. Code § 1:1-10.3 Costs of discovery

(a) The party seeking discovery shall pay for all reasonable expenses caused by the discovery request.

(b) Where a proponent of any notice or motion for discovery or a party taking a deposition is a State agency, and the party or person from whom such discovery or deposition is sought is entitled by law to recover in connection with such case the costs thereof from others, such State agency shall not be required to pay the cost of such discovery or deposition.

N.J. Admin. Code § 1:1-10.4 Time for discovery; relief from discovery; motions to compel

(a) The parties in any contested case shall commence immediately to exchange information voluntarily, to seek access as provided by law to public documents and to exhaust other informal means of obtaining discoverable material.

(b) Parties shall immediately serve discovery requests.

(c) No later than 15 days from receipt of a notice requesting discovery, the receiving party shall provide the requested information, material or access or offer a schedule for reasonable compliance with the notice; or, in the case of a notice requesting admissions, each matter therein shall be admitted unless within the 15 days the receiving party answers, admits or denies the request or objects to it pursuant to N.J.A.C. 1:1-10.4(d).

(d) A party who wishes to object to a discovery request or to compel discovery shall, prior to the filing of any motion regarding discovery, place a telephone conference call to the judge and to all other parties no later than 10 days of receipt of the discovery request or the response to a discovery request. If a party fails without good reason to place a timely telephone call, the judge may deny that party's objection or decline to compel the discovery.

(e) The parties shall complete all discovery no later than 10 days before the first scheduled evidentiary hearing or by such date ordered by the judge.

History

• Amended by R.1989 d.190, effective 4/3/1989.
• See: 20 N.J.R. 2845(b), 21 N.J.R. 889(a).
• In (c), clear specifications added on the result of a failure to respond to a request for admissions.
• Petition for Rulemaking.
• See: 35 N.J.R. 3965(a), 4331(a).
• Amended by R.2004 d.95, effective 3/15/2004 (operative April 15, 2004).
• See: 35 N.J.R. 4349(a), 36 N.J.R. 1355(a).
• In (e), substituted "10 days" for "five days" following "no later than".
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In (b), deleted "and notices and make discovery motions" from the end; rewrote (d); and in (e), deleted "at the prehearing conference" from the end.

N.J. Admin. Code § 1:1-10.5 Sanctions

By motion of a party or on his or her own motion, a judge may impose sanctions pursuant to N.J.A.C. 1:1-14.1 4 and 14.15 for failure to comply with the requirements of this subchapter. Before imposing sanctions, the judge shall provide an opportunity to be heard.

History

• Amended by R.1991 d.279, effective 6/3/1991 (operative July 1, 1991).
• See: 23 N.J.R. 639(a), 23 N.J.R. 1786(a).
• Revised N.J.A.C. citation in rule text.
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Inserted "and 14.15".

N.J. Admin. Code § 1:1-10.6 Reserved

History

• Repealed by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Section was "Discovery in conference hearings; no discovery in mediation".

Subchapter 11 SUBPOENAS

N.J. Admin. Code § 1:1-11.1 Subpoenas for attendance of witnesses; production of documentary evidence; issuance; contents

(a) Subpoenas may be issued by the Clerk, any judge, or by pro se parties, attorneys-at-law or non-lawyer representatives, in the name of the Clerk, to compel the attendance of a person to testify or to produce books, papers, documents, electronically stored information or other objects at a hearing, provided, however, that a subpoena to compel the attendance of the Governor, an agency head, Assistant Commissioner, Deputy Commissioner, or Division Director may be issued only by a judge. A subpoena for the Governor, an agency head, Assistant Commissioner, Deputy Commissioner, or Division Director shall be issued only if the requesting party makes a showing that the subpoenaed individual has firsthand knowledge of, or direct involvement in, the events giving rise to the contested case, or that the testimony is essential to prevent injustice.

(b) The subpoena shall contain the title and docket number of the case, the name of the person to whom it has been issued, the time and place at which the person subpoenaed must appear, the name and telephone number of the party who has requested the subpoena and a statement that all inquiries concerning the subpoena should be directed to the requesting party. The subpoena shall command the person to whom it is directed to attend and give testimony or to produce books, papers, documents or other designated objects at the time and place specified therein and on any continued dates.

(c) Subpoenas to compel the attendance of a person to testify at a deposition may be issued by a judge pursuant to N.J.A.C. 1:1-10.2(c).

(d) A subpoena which requires production of books, papers, documents or other objects designated therein shall not be used as a discovery device in place of discovery procedures otherwise available under this chapter, nor as a means of avoiding discovery deadlines established by this chapter or by the judge in a particular case.

(e) Subpoena forms shall be available free of charge from the Office of Administrative Law. Subpoena forms may be obtained from the Clerk of the Office of Administrative Law or on the State of New Jersey Office of Administrative Law website http://www.state.nj.us/oal/.

(f) Upon request by a party, subpoena issued by the Clerk or by a judge may be forwarded to that party by facsimile transmission. Facsimile transmitted subpoenas shall be served in the same manner and shall have the same force and effect as any other subpoena pursuant to this subchapter. A party requesting a facsimile transmittal shall be charged for such transmittal pursuant to N.J.A.C. 1:1-7.5(e).

History

• Amended by R.1992 d.213, effective 5/18/1992.
• See: 24 N.J.R. 321(a), 24 N.J.R. 1873(b).
• Added (d).
• Amended by R.1994 d.293, effective 6/6/1994.
• See: 26 N.J.R. 1276(a), 26 N.J.R. 2255(a).
• Amended by R.2002 d.198, effective 7/1/2002.
• See: 34 N.J.R. 983(a), 34 N.J.R. 2309(a).
• In (e), added the second sentence.
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In (a), inserted ", electronically stored information".

N.J. Admin. Code § 1:1-11.2 Service; fees

(a) A subpoena shall be served by the requesting party by delivering a copy either in person or by certified mail return receipt requested to the person named in the subpoena, together with the appropriate fee, at a reasonable time in advance of the hearing.

(b) Witnesses required to attend shall be entitled to payment by the requesting party at a rate of $ 2.00 per day of attendance if the witness is a resident of the county in which the hearing is held and an additional allowance of $ 2.00 for every 30 miles of travel in going to the place of hearing from his or her residence and in returning if the witness is not a resident of the county in which the hearing is held.

N.J. Admin. Code § 1:1-11.3 Motions to quash

The judge on motion may quash or modify any subpoena for good cause shown. If compliance with a subpoena for the production of documentary evidence would be unreasonable or oppressive, the judge may condition denial of the motion upon the advancement by the requesting party of the reasonable cost of producing the objects subpoenaed. The judge may direct that the objects designated in the subpoena be produced before the judge at a time prior to the hearing or prior to the time when they are to be offered in evidence and may upon their production permit them or portions of them to be inspected by the parties and their attorneys.

N.J. Admin. Code § 1:1-11.4 Failure to obey subpoena

A party who refuses to obey a subpoena may be subject to sanctions under N.J.A.C. 1:1-14.4 or may suffer an inference that the documentary or physical evidence or testimony that the party fails to produce is unfavorable.

N.J. Admin. Code § 1:1-11.5 Enforcement

A party who has requested issuance of a subpoena may seek enforcement of the subpoena by bringing an action in the Superior Court pursuant to the New Jersey Court Rules.

Subchapter 12 MOTIONS

N.J. Admin. Code § 1:1-12.1 When and how made; generally

(a) Where a party seeks an order of a judge, the party shall apply by motion.

1. A party shall make each motion in writing, unless it is made orally during a hearing or unless the judge otherwise permits it to be made orally.

2. No technical forms of motion are required. In a motion, a party shall state the grounds upon which the motion is made and the relief or order being sought.

(b) A party shall file each motion with the judge. If a case has not yet been assigned to a judge, motions may be filed with the Clerk.

(c) In a motion for substantially the same relief as that previously denied, a party shall specifically identify the previous proceeding and its disposition.

History

• Amended by R.1991 d.44, effective 2/4/1991.
• See: 22 N.J.R. 3278(b), 23 N.J.R. 293(a).
• In (b): deleted text explaining Clerk's procedures regarding motions. Added text: "If a case ... with the Clerk."
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In (a)2, substituted "and" for the comma following "made", deleted "and the date when the matter shall be submitted to the judge for disposition" following "sought" and deleted the last sentence; and deleted (d).
• Administrative correction.
• See: 40 N.J.R. 6957(a).

N.J. Admin. Code § 1:1-12.2 Motions in writing; time limits

(a) Proof of service shall be filed with all moving and responsive papers.

(b) With the exception of emergency relief applications made pursuant to N.J.A.C. 1:1-12.6, summary decision motions made pursuant to N.J.A.C. 1:1-12.5, and when a motion is expedited pursuant to (f) below, the opposing parties shall file and serve responsive papers no later than 10 days after receiving the moving papers.

(c) The moving party may file and serve further papers responding to any matter raised by the opposing party and shall do so no later than five days after receiving the responsive papers.

(d) All motions in writing shall be decided on the papers unless oral argument is directed by the judge.

(e) With the exception of motions for summary decision under N.J.A.C. 1:1-12.5, motions concerning predominant interest in consolidated cases under N.J.A.C. 1:1-17.6, and motions for emergency relief pursuant to N.J.A.C. 1:1-12.6, all motions shall be decided within 30 days of service of the last permitted response.

(f) A party may request an expedited schedule for disposition of a motion by arranging a telephone conference between the judge and all parties. If the judge agrees to expedite, he or she must establish a schedule for responsive papers, submission and decision.

History

• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Section was "Motions in writing; generally, no oral argument; time limits". Deleted former (a), recodified former (b) through (g) as (a) through (f); in (a), deleted the former first sentence and substituted "all moving and responsive" for "the moving"; rewrote (b); in (d), substituted "decided" for "submitted for disposition"; and in (e), substituted a comma for "and" following the first N.J.A.C. reference and "30 days of service of the last permitted response" for "10 days after they are submitted for disposition", and inserted "and motions for emergency relief pursuant to N.J.A.C. 1:1-12.6,".

N.J. Admin. Code § 1:1-12.3 Procedure when oral argument is directed

All motions for which oral argument has been directed shall be heard by telephone conference unless otherwise directed by the judge. All arguments on motions shall be sound recorded.

History

• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Rewrote the section.

N.J. Admin. Code § 1:1-12.4 Affidavits; briefs and supporting statements; evidence on motions

(a) Motions and answering papers shall be accompanied by all necessary supporting affidavits and briefs or supporting statements. All motions and answering papers shall be supported by affidavits for facts relied upon which are not of record or which are not the subject of official notice. Such affidavits shall set forth only facts which are admissible in evidence under N.J.A.C. N.J.S.A. 1:1-15, and to which affiants are competent to testify. Properly verified copies of all papers or parts of papers referred to in such affidavits may be annexed thereto.

(b) In the discretion of the judge, a party or parties may be required to submit briefs or supporting statements pursuant to the schedule established in N.J.A.C. 1:1-12.2 or as ordered by the judge.

(c) The judge may hear the matter wholly or partly on affidavits or on depositions, and may direct any affiant to submit to cross-examination and may permit supplemental or clarifying testimony.

N.J. Admin. Code § 1:1-12.5 Motion for summary decision; when and how made; partial summary decision

(a) A party may move for summary decision upon all or any of the substantive issues in a contested case. Such motion must be filed no later than 30 days prior to the first scheduled hearing date or by such date as ordered by the judge.

(b) The motion for summary decision shall be served with briefs and with or without supporting affidavits. The decision sought may be rendered if the papers and discovery which have been filed, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to prevail as a matter of law. When a motion for summary decision is made and supported, an adverse party in order to prevail must by responding affidavit set forth specific facts showing that there is a genuine issue which can only be determined in an evidentiary proceeding. Such response must be filed within 20 days of service of the motion. A reply, if any, must be filed no later than 10 days thereafter. If the adverse party does not so respond, a summary decision, if appropriate, shall be entered.

(c) Motions for summary decision shall be decided within 45 days from the due date of the last permitted responsive filing. Any motion for summary decision not decided by an agency head which fully disposes of the case shall be treated as an initial decision under N.J.A.C. N.J.S.A. 1:1-18. Any partial summary decision shall be treated as required by (e) and (f) below.

(d) If, on motion under this section, a decision is not rendered upon all the substantive issues in the contested case and a hearing is necessary, the judge at the time of ruling on the motion, by examining the papers on file in the case as well as the motion papers, and by interrogating counsel, if necessary, shall, if practicable, ascertain what material facts exist without substantial controversy and shall thereupon enter an order specifying those facts and directing such further proceedings in the contested case as are appropriate. At the hearing in the contested case, the facts so specified shall be deemed established.

(e) A partial summary decision order shall by its terms not be effective until a final agency decision has been rendered on the issue, either upon interlocutory review pursuant to N.J.A.C. 1:1-14.1 0 or at the end of the contested case, pursuant to N.J.A.C. 1:1-18.6. However, at the discretion of the judge, for the purpose of avoiding unnecessary litigation or expense by the parties, the order may be submitted to the agency head for immediate review as an initial decision, pursuant to N.J.A.C. 1:1-18.3(c)12. If the agency head concludes that immediate review of the order will not avoid unnecessary litigation or expense, the agency head may return the matter to the judge and indicate that the order will be reviewed at the end of the contested case. Within 10 days after a partial summary decision order is filed with the agency head, the Clerk shall certify a copy of pertinent portions of the record to the agency head.

(f) Review by the agency head of any partial summary decision shall not cause delay in scheduling hearing dates or result in a postponement of any scheduled hearing dates unless the judge assigned to the case orders that a postponement is necessary because of special requirements, possible prejudice, unproductive effort or other good cause.

History

• Amended by R.1990 d.368, effective August, 6, 1990.
• See: 22 N.J.R. 3(a), 22 N.J.R. 2262(a).
• In (e): added text to provide for an agency head to remand partial summary decisions to judge when deemed appropriate that decision will be reviewed at the end of contested case.
• Amended by R.2008 d.151, effective 6/16/2008.
• See: 40 N.J.R. 915(a), 40 N.J.R. 3617(a).
• Rewrote (a); in (b), added the fourth and fifth sentences; and in (c), substituted "due date of the last permitted responsive filing" for "date of submission".

N.J. Admin. Code § 1:1-12.6 Emergency relief

(a) Where authorized by law and where irreparable harm will result without an expedited decision granting or prohibiting some action or relief connected with a contested case, emergency relief pending a final decision on the whole contested case may be ordered upon the application of a party.

(b) Applications for emergency relief shall be made directly to the agency head and may not be made to the Office of Administrative Law.

(c) An agency head receiving an application for emergency relief may either hear the application or forward the matter to the Office of Administrative Law for hearing on the application for emergency relief. When forwarded to the Office of Administrative Law, the application shall proceed in accordance with (i) through (k) below. All applications for emergency relief shall be heard on an expedited basis.

(d) The moving party must serve notice of the request for emergency relief on all parties. Proof of service will be required if the adequacy of notice is challenged. Opposing parties shall be given ample opportunity under the circumstances to respond to an application for emergency relief.

(e) Where circumstances require some immediate action by the agency head to preserve the subject matter of the application pending the expedited hearing, or where a party applies for emergency relief under circumstances which do not permit an opposing party to be fully heard, the agency head may issue an order granting temporary relief. Temporary relief may continue until the agency head issues a decision on the application for emergency relief.

(f) When temporary relief is granted by an agency head under circumstances which do not permit an opposing party to be fully heard, temporary relief shall:

1. Be based upon specific facts shown by affidavit or oral testimony, that the moving party has made an adequate, good faith effort to provide notice to the opposing party, or that notice would defeat the purpose of the application for relief;

2. Include a finding that immediate and irreparable harm will probably result before adequate notice can be given;

3. Be based on the likelihood that the moving party will prevail when the application is fully argued by all parties;

4. Be as limited in scope and temporary as is possible to allow the opposing party to be given notice and to be fully heard on the application; and

5. Contain a provision for serving and notifying all parties and for scheduling a hearing before the agency head or for transmitting the application to Office of Administrative Law.

(g) Upon determining any application for emergency relief, the agency head shall forthwith issue and immediately serve upon the parties a written order on the application. If the application is related to a contested case that has been transmitted to Office of Administrative Law, the agency head shall also serve the Clerk of Office of Administrative Law with a copy of the order.

(h) Applications to an agency head for emergent relief in matters previously transmitted to the Office of Administrative Law shall not delay the scheduling or conduct of hearings, unless the presiding judge determines that a postponement is necessary due to special requirements of the case, because of probable prejudice or for other good cause.

(i) Upon determining an application for emergency relief, the judge forthwith shall issue to the parties, the agency head and the Clerk a written order on the application. The Clerk shall file with the agency head any papers in support of or opposition to the application which were not previously filed with the agency and a sound recording of the oral argument on the application, if any oral argument has occurred.

(j) The agency head's review of the judge's order shall be completed without undue delay but no later than 45 days from entry of the judge's order, except when, for good cause shown and upon notice to the parties, the time period is extended by the joint action of the Director of the Office of Administrative Law and the agency head. Where the agency head does not act on review of the judge's order within 45 days, the judge's order shall be deemed adopted.

(k) Review by an agency head of a judge's order for emergency relief shall not delay the scheduling or conduct of hearings in the Office of Administrative Law, unless the presiding judge determines that a postponement is necessary due to special requirements of the case, because of probable prejudice or for other good cause.

N.J. Admin. Code § 1:1-12.7 Disposition of motions

Disposition of motions which completely conclude a case shall be by initial decision. Disposition of all other motions shall be by order.

Subchapter 13 PREHEARING CONFERENCES AND PROCEDURES

N.J. Admin. Code § 1:1-13.1 Prehearing conferences

(a) A prehearing conference shall be scheduled in accordance with the criteria established in N.J.A.C. 1:1-9.1(d).

(b) The prehearing notice shall advise the parties, their attorneys or other representatives that a prehearing conference will cover those matters listed in N.J.A.C. 1:1-13.2 and that discovery should have already been commenced. At the time of the prehearing conference, the participants shall be prepared to discuss one or more alternate dates when the parties and witnesses will be available for the evidentiary hearing. The judge may advise the parties that other special matters will be discussed at the prehearing conference.

(c) In exceptional circumstances, the judge may, upon no less than 10 days' notice, require the parties to file with the judge and serve upon all other parties no later than three days before the scheduled prehearing conference, prehearing memoranda stating their respective positions on any or all of the matters specified in N.J.A.C. 1:1-13.2 set forth in the same sequence and with corresponding numbers or on other special matters specifically designated.

(d) A prehearing conference shall be held by telephone conference call unless the judge otherwise directs.

N.J. Admin. Code § 1:1-13.2 Prehearing order; amendment

(a) Within 10 days after the conclusion of the prehearing conference, the judge shall enter a written order addressing the appropriate items listed in (a)1 through 14 below and shall cause the same to be served upon all parties.

1. The nature of the proceeding and the issue or issues to be resolved including special evidence problems;

2. The parties and their status, for example, petitioner, complainant, appellant, respondent, intervenor, etc., and their attorneys or other representatives of record. In the event that a particular member or associate of a firm is to try a case, or if outside trial counsel is to try the case, the name must be specifically set forth at the prehearing. No change in such designated trial counsel shall be made without leave of the judge if such change will interfere with the date for hearing. If the name of a specific trial counsel is not set forth, the judge and opposing parties shall have the right to expect any partner or associate to proceed with the trial on the date of hearing;

3. Any special legal requirements as to notice of hearing;

4. The schedule of hearing dates and the time and place of hearing;

Stipulations as to facts and issues;

6. Any partial settlement agreements and their terms and conditions;

7. Any amendments to the pleadings contemplated or granted;

8. Discovery matters remaining to be completed and the date when discovery shall be completed for each mode of discovery to be utilized;

9. Order of proofs;

10. A list of exhibits marked for identification;

11. A list of exhibits marked in evidence by consent;

12. Estimated number of fact and expert witnesses;

13. Any motions contemplated, pending and granted;

14. Other special matters determined at the conference.

(b) Any party may, upon written motion filed no later than five days after receiving the prehearing order, request that the order be amended to correct errors.

(c) The prehearing order may be amended by the judge to accommodate circumstances occurring after its entry date. Unless precluded by law, a prehearing order may also be amended by the judge to conform the order with the proofs.

History

• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In the introductory paragraph of (a), substituted "enter" for "prepare" and "addressing the appropriate items listed in (a)1" for "specifically setting out the matters listed in 1".

Subchapter 14 CONDUCT OF CASES

N.J. Admin. Code § 1:1-14.1 Public hearings; records as public; sealing a record; media coverage

(a) All evidentiary hearings, proceedings on motions and other applications shall be conducted as public hearings unless otherwise provided by statute, rule or regulation, or on order of a judge for good cause shown. Prehearing conferences and informal discussions immediately preceding the hearing or during the hearing to facilitate the orderly and expeditious conduct of the case may, at the judge's discretion, be conducted in public or in closed session and may or may not be recorded. Mediations and settlement conferences shall be held in closed session but may be recorded. All other proceedings in the presence of a judge shall be recorded verbatim either by a stenographic reporter or by sound recording devices. All discussions off the record, no matter how brief, except settlement discussions and mediations, shall be summarized generally for the record. The record of all hearings shall be open to public inspection, but the judge may, for good cause shown, order the sealing of the record or any part thereof.

(b) In considering whether to close a hearing and/or seal a record, the judge shall consider the requirements of due process of law, other constitutional and statutory standards and matters of public policy. The judge shall consider the need to protect against unwarranted disclosure of sensitive financial information or trade secrets, to protect parties or witnesses from undue embarrassment or deprivations of privacy, or to promote or protect other equally important rights or interests.

(c) When sealing a record, the judge must specify the consequences of such an order to all material in the case file including any evidence, the stenographic notes or audiotapes and the initial decision. The treatment of testimony or exhibits shall be on such terms as are appropriate to balance public and private rights or interests and to preserve the record for purposes of review. The judge shall also indicate what safeguards shall be imposed upon the preparation and disclosure of any transcript of the proceedings.

(d) All public hearings may be filmed, photographed and recorded, subject to reasonable restrictions established by the judge to avoid disruption of the hearing process. The number of cameras and lights in the hearing room at any one time may be limited. Technical crews and equipment may be prohibited from moving except during recesses and after the proceedings are concluded for the day. To protect the attorney/client privilege and the effective right to counsel, there shall be no recording of conferences between attorneys and their clients or between counsel and the judge at the bench.

History

• Amended by R.1988 d.115, effective 3/21/1988.
• See: 20 N.J.R. 127(a), 20 N.J.R. 642(a).
• Added text to (d) "and the effective right to counsel".

N.J. Admin. Code § 1:1-14.2 Expedition

(a) Hearings and other proceedings shall proceed with all reasonable expedition and, to the greatest extent possible, shall be held at one place and shall continue, except for brief intervals of the sort normally involved in judicial proceedings, without suspension until concluded.

(b) The parties shall promptly advise the Clerk and the judge of any event which will probably delay the conduct of the case.

N.J. Admin. Code § 1:1-14.3 Interpreters; payment

(a) Except as provided in (d) below, any party at his or her own cost may obtain an interpreter if the judge determines that interpretation is necessary.

(b) Taking into consideration the complexity of the issues and communications involved, the judge may require that an interpreter be taken from an official registry of interpreters or otherwise be assured that the proposed interpreter can adequately aid and enable the witness in conveying information to the judge.

(c) The judge may accept as an interpreter a friend or relative of a party or witness, any employee of a State or local agency, or other person who can provide acceptable interpreter assistance.

(d) In cases requiring the appointment of a qualified interpreter for a hearing impaired person pursuant to N.J.S.A. 34:1-69.7 et seq., the administrative law judge shall appoint an interpreter from the official registry of interpreters. The fee for the interpreter shall be paid by the transmitting agency.

History

• Amended by R.1989 d.159, effective 3/20/1989.
• See: 20 N.J.R. 2845(c), 21 N.J.R. 749(b).
• (d) added requiring appointment of interpreter for hearing impaired, transmitting agency to pay fee.
• Amended by R.2002 d.198, effective 7/1/2002.
• See: 34 N.J.R. 983(a), 34 N.J.R. 2309(a).
• In (c), substituted "The" for "If all parties consent, the".

N.J. Admin. Code § 1:1-14.4 Failure to appear; sanctions for failure to appear

(a) If, after appropriate notice, neither a party nor a representative appears at any proceeding scheduled by the Clerk or judge, the judge shall hold the matter for one day before taking any action. If the judge does not receive an explanation for the nonappearance within one day, the judge shall, unless proceeding pursuant to (d) below, direct the Clerk to return the matter to the transmitting agency for appropriate disposition pursuant to N.J.A.C. 1:1-3.3(b) and (c).

(b) If the nonappearing party submits an explanation in writing, a copy must be served on all other parties and the other parties shall be given an opportunity to respond.

(c) If the judge receives an explanation:

1. If the judge concludes that there was good cause for the failure to appear, the judge shall reschedule the matter for hearing; or

2. If the judge concludes that there was no good cause for the failure to appear, the judge may refuse to reschedule the matter and shall issue an initial decision explaining the basis for that conclusion, or may reschedule the matter and, at his or her discretion, order any of the following:

i. The payment by the delinquent representative or party of costs in such amount as the judge shall fix, to the State of New Jersey or the aggrieved person;

ii. The payment by the delinquent representative or party of reasonable expenses, including attorney's fees, to an aggrieved representative or party; or

iii. Such other case-related action as the judge deems appropriate.

(d) If the appearing party requires an initial decision on the merits, the party shall ask the judge for permission to present ex parte proofs. If no explanation for the failure to appear is received, and the circumstances require a decision on the merits, the judge may enter an initial decision on the merits based on the ex parte proofs, provided the failure to appear is memorialized in the decision.

History

• Amended by R.1987 d.462, effective 11/16/1987.
• See: 19 N.J.R. 1592(a), 19 N.J.R. 2131(b).
• Added text in (a) "The judge may . . . the requested relief."
• Amended by R.1987 d.506, effective 12/21/1987.
• See: 19 N.J.R. 1591(b), 19 N.J.R. 2388(b).
• Substituted may for shall in (a).
• Amended by R.1991 d.279, effective 6/3/1991 (operative July 1, 1991).
• See: 23 N.J.R. 639(a), 23 N.J.R. 1786(a).
• Amended failure to appear rules; recodified provisions of original subsection (c) as new rule, N.J.A.C. 1:1-14.14.
• Recodified original subsection to subsections (a) and (b), deleting original subsection (b). In (a), changed "10" to "one" day for time limit of receipt of an explanation for nonappearance. Added additional text to (a) and new (b)2. Added new subsection (c).
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In (a), substituted "shall, unless proceeding pursuant to (d) below" for "may, pursuant to N.J.A.C. N.J.S.A. 1:1-3.3(b) and (c)", and inserted "pursuant to N.J.A.C. N.J.S.A. 1:1-3.3(b) and (c)"; recodified (b)1 as (c); in the introductory paragraph of (c), deleted ", the judge shall reschedule the matter and may, at his or her discretion, order any of the following" from the end; added (c)1 and (c)2; deleted former (b)2; recodified former (c) as (d), and in (d), deleted "because of the failure to appear" preceding ", the party shall ask".

N.J. Admin. Code § 1:1-14.5 Ex parte communications

(a) Except as specifically permitted by law or this chapter, a judge may not initiate or consider ex parte any evidence or communications concerning issues of fact or law in a pending or impending proceeding. Where ex parte communications are unavoidable, the judge shall advise all parties of the communications as soon as possible thereafter.

(b) The ex parte communications preclusion shall not encompass scheduling discussions or other practical administrative matters.

(c) Ex parte discussions relating to possible settlement may be conducted in the course of settlement conferences or mediations when all parties agree in advance.

(d) Where an agency or agency staff is a party to a contested case, the legal representative appearing and acting for the agency in the case may not engage in ex parte communications concerning that case with the transmitting agency head, except for purposes of conferring settlement authority on the representative or as necessary to keep the agency head as a client informed of the status of the case, provided that no information may be disclosed ex parte if it would compromise the agency head's ability to adjudicate the case impartially. In no event may the legal representative participate in making or preparing the final decision in the case.

History

• Amended by R.1988 d.78, effective 2/16/1988.
• See: 19 New Jersey Register 1761(b), 20 New Jersey Register 385(a).
• Adopted the codifying of the Supreme Court's ruling in In Re Opinion No. 583 of the Advisory Committee on Professional Ethics, 107 N.J. 230 (1987).

N.J. Admin. Code § 1:1-14.6 Judge's powers in presiding over prehearing activities, conducting hearings, developing records and rendering initial decisions

(a) The judge may schedule any form of hearing or proceeding and establish appropriate location areas and instruct the Clerk to issue all appropriate notices.

(b) When required in individual cases, the judge may supersede any notice issued by the Clerk by informing the parties and the Clerk of this action.

(c) Depending on the needs of the case, the judge may schedule additional hearing dates, declare scheduled hearing dates unnecessary, or schedule any number of in-person conferences or telephone conferences.

(d) When required in individual cases, the judge at any time of the proceeding may convert any form of proceeding into another, whether more or less formal or whether in-person or by telephone.

(e) The judge may bifurcate hearings whenever there are multiple parties, issues or claims, and the nature of the case is such that a hearing of all issues in one proceeding may be complex and confusing, or whenever a substantial saving of time would result from conducting separate hearings or whenever bifurcation might eliminate the need for further hearings.

(f) The judge may establish special accelerated or decelerated schedules to meet the special needs of the parties or the particular case.

(g) The judge may administer any oaths or affirmations required or may direct a certified court reporter to perform this function.

(h) The judge may render any ruling or order necessary to decide any matter presented to him or her which is within the jurisdiction of the transmitting agency or the agency conducting the hearing.

(i) The judge shall control the presentation of the evidence and the development of the record and shall determine admissibility of all evidence produced. The judge may permit narrative testimony whenever appropriate.

(j) The judge may utilize his or her sanction powers to ensure the proper conduct of the parties and their representatives appearing in the matter.

(k) The judge may limit the presentation of oral or documentary evidence, the submission of rebuttal evidence and the conduct of cross-examination.

(l) The judge may determine that the party with the burden of proof shall not begin the presentation of evidence and may require another party to proceed first.

(m) The judge may make such rulings as are necessary to prevent argumentative, repetitive or irrelevant questioning and to expedite the cross-examination to an extent consistent with disclosure of all relevant testimony and information.

(n) The judge may compel production of relevant materials, files, records and documents and may issue subpoenas to compel the appearance of any witness when he or she believes that the witness or produced materials may assist in a full and true disclosure of the facts.

(o) The judge may require any party at any time to clarify confusion or gaps in the proofs. The judge may question any witness to further develop the record.

(p) The judge may take such other actions as are necessary for the proper, expeditious and fair conduct of the hearing or other proceeding, development of the record and rendering of a decision.

N.J. Admin. Code § 1:1-14.7 Conduct of hearings

(a) The judge shall commence hearings by stating the case title and the docket number, asking the representatives or parties present to state their names for the record and describing briefly the matter in dispute. The judge shall also, unless all parties are represented by counsel or otherwise familiar with the procedures, state the procedural rules for the hearing. The judge may also permit any stipulations, settlement agreements or consent orders entered into by any of the parties prior to the hearing to be entered into the record at this time.

(b) The party with the burden of proof may make an opening statement. All other parties may make statements in a sequence determined by the judge.

(c) After opening statements, the party with the burden of proof shall begin the presentation of evidence unless the judge has determined otherwise. The other parties may present their evidence in a sequence determined by the judge.

(d) Cross-examination of witnesses shall be conducted in a sequence and in a manner determined by the judge to expedite the hearing while ensuring a fair hearing.

(e) When all parties and witnesses have been heard, opportunity shall be offered to present oral final argument, in a sequence determined by the judge.

(f) Unless permitted or requested by the judge, there shall be no proposed findings of fact, conclusions of law, briefs, forms of order or other dispositions permitted after the final argument. Whenever possible, proposed findings or other submissions should be offered at the hearing in lieu of or in conjunction with the final argument.

1. When proposed findings or other submissions are permitted or requested by the judge, the parties shall conform to a schedule that may not exceed 30 days after the last day of testimony or the final argument or as otherwise directed by the judge.

2. When the judge permits proposed findings or other submissions to be prepared with the aid of a transcript, the transcript must be ordered immediately. The submission time frame shall commence upon receipt of the transcript.

3. Any proposed findings of fact submitted by a party shall not be considered unless they are based on facts proved in the hearing.

4. Any reference in briefs or other such submissions to initial and final decisions shall include sufficient information to enable the judge to locate the initial decision. This shall include either the Office of Administrative Law docket number, or a reference to New Jersey Administrative Reports or another published and indexed compilation or to the Rutgers Camden Law School website at http://lawlibrary.rutgers.edu/oal. A copy of any cited decision shall be supplied if it is not located in any published compilation or on the foregoing website.

(g) A telephone hearing is begun by the judge placing a conference call on a designated date and time to the parties in the case. In all other respects, the procedures applicable to hearings shall apply.

History

• Amended by R.1991 d.44, effective 2/4/1991.
• See: 22 N.J.R. 3278(b), 23 N.J.R. 293(a).
• In (h): deleted text ", or when the last such item has been received by the judge, whichever is earlier," describing filing of submissions.
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Section was "Conduct of conference hearings, plenary hearings and telephone hearings". In (a), deleted "conference and plenary" preceding "hearings"; in (b), substituted "The" for "In conference and plenary hearings, the"; in (c), deleted "in conference and plenary hearings" following "statements"; in (d), deleted "in conference and plenary hearings" following "witnesses"; in (e), deleted "in conference and plenary hearings" following "heard"; in the introductory paragraph of (f), deleted "in plenary hearings" following "after the final argument"; in (f)1, inserted "or as otherwise directed by the judge"; in (f)2, deleted "30-day" preceding "submission"; rewrote (f)4 and (g); and deleted (h) and (i).

N.J. Admin. Code § 1:1-14.8 Conduct of proceedings on the papers and telephone hearings

(a) Upon transmittal of a case that may be conducted as a proceeding on the papers, the Clerk shall schedule a hearing and send a notice of hearing on the papers to the parties. The notice shall permit the party requesting the hearing to select a telephone hearing or a proceeding on the papers in lieu of the scheduled in-person hearing. Along with the notice, the Clerk shall transmit a certification to be completed if the party requesting the hearing chooses to have a proceeding on the papers.

(b) A completed certification must be returned to the Clerk and served on the other party no later than 10 days before the scheduled hearing date. Statements, records and other documents which supplement the certification may also be submitted. Upon request and for good cause shown, the Clerk may grant additional time for submission of supplemental documents.

(c) Upon timely receipt of a completed certification, the Clerk will assign the record for review and determination by a judge. The record consists of the certification and supplemental documents, as well as documents transmitted with the file by the transmitting agency. In a proceeding on the papers, the record is closed when the Clerk assigns the record to a judge.

(d) If the party requesting the hearing does not appear at the scheduled in-person or telephone hearing and no certificate is timely received, the matter shall be handled as a failure to appear pursuant to N.J.A.C. 1:1-14.4.

History

• Amended by R.1988 d.517, effective 11/7/1988.
• See: 20 N.J.R. 1979(c), 20 N.J.R. 2749(a).
• Deleted text from (e) and substituted new. The new text changes the timing of exchange to receipt of the notice of filing of the case, rather than the notice of hearing.
• Amended by R.1991 d.279, effective 6/3/1991 (operative July 1, 1991).
• See: 23 N.J.R. 639(a), 23 N.J.R. 1786(a).
• In (c): revised N.J.A.C. citation.
• Amended by R.2002 d.198, effective 7/1/2002.
• See: 34 N.J.R. 983(a), 34 N.J.R. 2309(a).
• Rewrote the section.
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Section was "Conduct of proceedings on the papers". Rewrote (a); in (b), inserted "and served on the other party" and substituted "10 days before the scheduled hearing date" for "30 days from receipt of the notice of hearing and certification"; in (c), substituted "record is closed" for "hearing is concluded"; deleted former (d); recodified former (e) as (d); and rewrote (d).

N.J. Admin. Code § 1:1-14.9 Orders; preparation of orders

(a) Any resolution which does not completely conclude the case shall be by order. Orders may be rendered in writing or orally on the record by the judge.

(b) Unless such review is precluded by law, all judges' orders are reviewable by an agency head in accordance with N.J.A.C. 1:1-14.1 0 or when rendering a final decision under N.J.A.C. 1:1-18.6.

(c) Orders may be prepared by a party at the direction of a judge. When prepared by a party, the order shall be filed with the judge and served on all parties who may within five days after service object to the form of the order by writing to the judge with a copy to all parties. Upon objection to the form of the order, the judge, without oral argument or any further proceedings, may settle the form of the order either by preparing a new order or by modifying the proposed order. After signing the order, the judge shall cause the order to be served upon the parties.

N.J. Admin. Code § 1:1-14.10 Interlocutory review

(a) Except for the special review procedures provided in N.J.A.C. 1:1-12.6 (emergency relief), and 1:1-12.5(e) (partial summary decision), an order or ruling may be reviewed interlocutorily by an agency head at the request of a party.

(b) Any request for interlocutory review shall be made to the agency head and copies served on all parties no later than five working days from the receipt of the written order or oral ruling, whichever is rendered first. An opposing party may, within three days of receipt of the request, submit an objection to the agency head. A copy must be served on the party who requested review. Any request for interlocutory review or objection to a request shall be in writing by memorandum, letter or motion and shall include a copy of any written order or ruling or a summary of any oral order or ruling sought to be reviewed. Copies of all documents submitted shall be filed with the judge and Clerk.

(c) Within 10 days of the request for interlocutory review, the agency head shall notify the parties and the Clerk whether the order or ruling will be reviewed. If the agency head does not so act within 10 days, the request for review shall be considered denied. Informal communication by telephone or in person to the parties or their representatives and to the Clerk within the 10 day period will satisfy this notice requirement, provided that a written communication or order promptly follows.

(d) A party opposed to the grant of interlocutory review may, within three days of receiving notice that review was granted, submit to the agency head in writing arguments in favor of the order or ruling being reviewed. A copy shall be served on the party who requested review.

(e) Where the agency head determines to conduct an interlocutory review, the agency head shall issue a decision, order or other disposition of the review at the earliest opportunity but no later than 20 days from receiving the request for review. Where the interests of justice require, the agency head shall conduct an interlocutory review on an expedited basis. Where the agency head does not issue an order within 20 days, the judge's ruling shall be considered conditionally affirmed. The time period for disposition may be extended for good cause for an additional 20 days if both the agency head and the Director of the Office of Administrative Law concur.

(f) Where the proceeding generating the request for interlocutory review has been sound recorded and the agency head requests the verbatim record, the Clerk shall furnish the original sound recording or a certified copy within one day of the request. The party requesting the interlocutory review shall provide the agency head with all other papers, materials, transcripts or parts of the record which pertain to the request for interlocutory review.

(g) The time limits established in this section, with the exception of (e) above, may be extended by the agency head where the need for a delay is caused by honest mistake, accident, or any cause compatible with due diligence.

(h) An agency head's determination to review interlocutorily an order or ruling shall not delay the scheduling or conduct of hearings, unless a postponement is necessary due to special requirements of the case, because of probable prejudice, or for other good cause. Either the presiding judge or the agency head may order a stay of the proceedings, either on their own or upon application. Applications for stays should be made in the first instance to the presiding judge. If denied, the application may be resubmitted to the agency head. Pending review by the agency head, a judge may conditionally proceed on an order or ruling in order to complete the evidential record in a case or to avoid disruption or delay in any ongoing or scheduled hearing.

(i) Except as limited by ( l ) below and N.J.A.C. 1:1-18.4(a), any order or ruling reviewable interlocutorily is subject to review by the agency head after the judge renders the initial decision in the contested case, even if an application for interlocutory review:

1. Was not made;

2. Was made but the agency head declined to review the order or ruling; or

3. Was made and not considered by the agency head within the established time frame.

(j) In the following matters as they relate to proceedings before the Office of Administrative Law, the Director is the agency head for purposes of interlocutory review:

1. Disqualification of a particular judge due to interest or any other reason which would preclude a fair and unbiased hearing, pursuant to N.J.A.C. 1:1-14.1 2;

2. Appearances of non-lawyer representatives, pursuant to N.J.A.C. 1:1-5.4;

3. Imposition of conditions and limitations upon non-lawyer representatives, pursuant to N.J.A.C. 1:1-5.5;

4. Sanctions under N.J.A.C. 1:1-14.4 or 14.14 and 14.15 consisting of the assessment of costs, expenses, or fines;

5. Disqualification of attorneys, pursuant to N.J.A.C. 1:1-5.3;

6. Establishment of a hearing location pursuant to N.J.A.C. 1:1-9.1(b); and

7. Appearance of attorneys pro hac vice pursuant to N.J.A.C. 1:1-5.2.

(k) Any request for interlocutory review of those matters specified in (j) above should be addressed to the Director of the Office of Administrative Law with a copy to the agency head who transmitted the case to the Office of Administrative Law. Review shall proceed in accordance with (b) through (g) above.

(l) Orders or rulings issued under (j)1, 2, 3, 5, 6 and 7 above may only be appealed interlocutorily; a party may not seek review of such orders or rulings after the judge renders the initial decision in the contested case.

(m) A judge's determination to proceed on the record or to order a new hearing pursuant to N.J.A.C. 1:1-14.1 3(b) and (c) may only be appealed interlocutorily; a party may not seek review of such orders or rulings after the judge renders the initial decision in the contested case.

History

• Amended by R.1987 d.462, effective 11/16/1987.
• See: 19 N.J.R. 1592(a), 19 N.J.R. 2131(b).
• Added (m).
• Amended by R.1990 d.219, effective 5/7/1990.
• See: 22 N.J.R. 590(a), 22 N.J.R. 1353(a).
• In (i): added language to clarify who may order a stay in an administrative hearing.
• Amended by R.1991 d.34, effective 1/22/1991.
• See: 22 N.J.R. 3278(a), 23 N.J.R. 194(a).
• Added (k)6.
• Amended by R.1996 d.133, effective 3/18/1996.
• See: 27 N.J.R. 609(a), 28 N.J.R. 1503(a).
• In (k)4 added fines.
• Amended by R.2001 d.180, effective 6/4/2001.
• See: 33 N.J.R. 1040(a), 33 N.J.R. 1926(a).
• In (k)4, inserted "or 14.14" following "N.J.A.C. 1:1-14.4"; added (k)7.
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Deleted former (g); recodified former (h) through (m) as (g) through ( l); in (i), substituted "( l)" for "(m)"; in (j)4, inserted "and 14.15"; in (k), substituted "(j)" for "(k)" and "(g)" for "(h)"; and in ( l), substituted "(j)1" for "(k)1".
• Amended by R.2008 d.151, effective 6/16/2008.
• See: 40 N.J.R. 915(a), 40 N.J.R. 3617(a).

N.J. Admin. Code § 1:1-14.11 Ordering a transcript; cost; certification to court; copying

(a) Except as provided by (c) below, a transcript of any proceeding may be obtained by requesting the official court reporter or official transcription firm to prepare a transcript. The requesting party shall notify all other parties and the Clerk of the request. Unless the requesting party is the State or a political subdivision thereof, the request shall be accompanied by a reasonable security deposit not to exceed either the estimated cost of the transcript as determined by the preparer or $ 300.00 for each day or fraction thereof of the proceeding, the deposit to be made payable to the preparer. The reporter shall promptly prepare the transcript and shall file a copy with the Clerk at the time the original is delivered to the requesting party. The preparer shall bill the requesting party for any amount due for the preparation of the transcript and the copy or shall reimburse the requesting party for any overpayment.

(b) An unofficial copy of a sound recorded proceeding may be obtained by making a request to the Clerk accompanied by a blank standard cassette of appropriate length.

(c) When the preparation of a transcript is being requested for an appeal to court, whether the proceeding was sound or stenographically recorded, the request shall be made as follows:

1. For cases heard by an Administrative Law Judge, the request shall be made to the Clerk of the Office of Administrative Law;

2. For cases heard by an agency head, the request shall be made to the Clerk of that agency.

(d) All transcript preparation requests pursuant to (c) above for appeal to a court shall include one copy of the transcript for the Clerk and any additional copies required by R. N.J.S.A. 2:6-12. The form of the transcript request shall conform with the requirements of R. N.J.S.A. 2:5-3(a) and be accompanied by the deposit required by R. N.J.S.A. 2:5-3(d).

1. The Clerk shall promptly arrange for the preparation of the transcript. Upon completion of the transcript, the preparer shall bill the requesting party for any sum due or shall reimburse the requesting party for any overpayment and shall forward the original and any copies ordered pursuant to R. N.J.S.A. 2:6-12 to the requesting party. When the last volume of the entire transcript has been delivered to the appellant, the preparer shall forward to the Clerk the copy of the transcript prepared for the Clerk.

2. The Clerk shall transmit the transcript copy to the court and comply with the requirements of R. N.J.S.A. 2:5-3.

(e) For cases in which an agency possesses a transcript of the hearing being appealed, the request for copying under R. N.J.S.A. 2:5-3(a) shall be made to the Clerk of that agency. Upon receiving such a request, the Clerk shall make the existing transcript available to the appellant for reproduction for filing and service.

(f) Any transcript that is required by law to be filed with a Clerk shall be considered a public document which is available upon request for copying, as required by the Open Public Records Act, N.J.S.A. 47:1A-1 et seq.

(g) The following shall apply to all transcripts:

1. Transcripts must be prepared in accordance with State standards established by the Administrative Director of the Courts.

2. Unless a proceeding has been sealed, any person may request a transcript or a recording of the proceeding. However, if the person requesting a transcript or tape recording was not a party to the proceeding, the requester, when making the request, must also notify all parties of the request. If a party objects to the request, a written objection must be filed immediately with the Clerk and served on the requester and all other parties to the proceeding. This objection shall be reviewed by the judge who presided over the proceeding.

3. If a proceeding was sealed, only parties to the proceeding may request a transcript or a tape recording and the contents of the transcript or recording shall not be disclosed to anyone except in accordance with the order sealing the proceeding.

(h) Any party or person entitled by Federal statute or regulation to copy and inspect the verbatim transcript may arrange with the Clerk to review any transcript filed under (a) above and shall also be permitted to hear and receive a copy of any sound recorded proceeding pursuant to (b) above. All applications to obtain a transcript of any proceeding at public expense for use on appeal shall be made to the Appellate Court pursuant to New Jersey Court Rule R. N.J.S.A. 2:5-3 or in case of Federal appeals pursuant to applicable Federal Court Rules.

(i) Where the Division of Ratepayer Advocate is representing public interest in a proceeding and another party to the proceeding is entitled by law to recover the costs thereof from others, such other party shall obtain, pay for and furnish to the Ratepayer Advocate upon request the official transcript.

History

• Amended by R.1990 d.68, effective 2/5/1990.
• See: 21 N.J.R. 1181(b), 21 N.J.R. 3587(a), 22 N.J.R. 334(a).
• In (a)-(c): Deleted language specifying that "any party, or person, with a legitimate need, may obtain" or "may request a transcript.".
• In (a): Added sentence that the requesting party shall notify all other parties of the request. Established new rate for security deposit. Specified responsibilities of the preparer regarding transcripts and billings.
• In (c): Revised section to include new rate for security deposit and added sentence, "The reporter shall bill ... for any overpayment".
• Added new sections (d)-(h), recodifying old (d)-(e) as new (i)-(j).
• In (j): Deleted sentence regarding payment for official transcripts by state agencies.
• Amended by R.2002 d.198, effective 7/1/2002.
• See: 34 N.J.R. 983(a), 34 N.J.R. 2309(a).
• In (j), substituted references to Ratepayer Advocate for references to Public Advocate throughout.
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In (g), substituted "Open Public Records Act" for "Right to Know Law".
• Amended by R.2011 d.179, effective 7/5/2011.
• See: 43 N.J.R. 701(a), 43 N.J.R. 1523(a).
• Rewrote (a); deleted former (c); recodified former (d) through (j) as (c) through (i); in the introductory paragraph of (d), substituted "(c)" for "(d)"; and in (h), deleted "or (c)" following "(a)".

N.J. Admin. Code § 1:1-14.12 Disqualification of judges

(a) A judge shall, on his or her own motion, withdraw from participation in any proceeding if the judge:

1. Is by blood or marriage the second cousin of or is more closely related to any party to the proceeding;

2. Is by blood or marriage the first cousin of or is more closely related to any attorney in the case. This proscription shall extend to partners, employers, employees, or office associates of any such attorney;

3. Has been attorney of record or counsel in the action;

4. Has given an opinion upon a matter in question in the action;

5. Is interested in the event of the action;

6. Has discussed or negotiated his or her post-retirement employment with any party, attorney, or law firm involved in the matter; or

7. When there is any other reason which might preclude a fair and unbiased hearing and decision, or which might reasonably lead the parties or their representatives to believe so.

(b) Paragraphs (a)3, 4, and 5 above shall not prevent a judge from sitting because of having given an opinion in another action in which the same matter in controversy came in question or given an opinion on any question in controversy in the pending action in the course of previous proceedings therein, or because the board of chosen freeholders of a county or the municipality in which the judge resides or is liable to be taxed are or may be parties to the record or otherwise interested.

(c) A judge shall, as soon as practicable after assignment to a particular case, withdraw from participation in a proceeding whenever the judge finds that any of the criteria in (a)1 through 7 above apply. A judge may not avoid disqualification by disclosing on the record the basis for disqualification and securing the consent of the parties.

(d) Any party may, by motion, apply to a judge for his or her disqualification. Such motion must be accompanied by a statement of the reasons for such application and shall be filed as soon as practicable after a party has reasonable cause to believe that grounds for disqualification exist. In no event shall the judge enter any order, resolve any procedural matters or render any other determination until the motion for disqualification has been decided.

(e) Any request for interlocutory review of an administrative law judge's order under this section shall be made pursuant to N.J.A.C. 1:1-14.1 0(k) and ( l ).

History

• Amended by R.2013 d.105, effective 9/3/2013.
• See: 45 N.J.R. 149(a), 45 N.J.R. 2031(a).
• Rewrote (a); added new (b); recodified former (b) through (d) as (c) through (e); and in (c), substituted "7" for "8".

N.J. Admin. Code § 1:1-14.13 Proceedings in the event of death, disability, departure from State employment, disqualification or other incapacity of judge

(a) If, by reason of death, disability, departure from State employment, disqualification or other incapacity, a judge is unable to continue presiding over a pending hearing or issue an initial decision after the conclusion of the hearing, a conference will be scheduled to determine if the parties can settle the matter or, if not, can reach agreement upon as many matters as possible.

(b) In the event settlement is not reached, another judge shall be assigned to complete the hearing or issue the initial decision as if he or she had presided over the hearing from its commencement, provided:

The judge is able to familiarize himself or herself with the proceedings and all testimony taken by reviewing the transcript, exhibits marked in evidence and any other materials which are contained in the record; and

2. The judge determines that the hearing can be completed with or without recalling witnesses without prejudice to the parties.

(c) In the event the hearing cannot be continued for any of the reasons enumerated in (b) above, a new hearing shall be ordered by the judge.

(d) An order or ruling issued pursuant to (b) and (c) above may only be appealed interlocutorily; a party may not seek review of such orders or rulings after the judge renders the initial decision in the contested case.

History

• Amended by R.2008 d.151, effective 6/16/2008.
• See: 40 N.J.R. 915(a), 40 N.J.R. 3617(a).
• Added (d).

N.J. Admin. Code § 1:1-14.14 Sanctions; failure to comply with orders or requirements of this chapter

(a) For unreasonable failure to comply with any order of a judge or with any requirements of this chapter, the judge may:

1. Dismiss or grant the motion or application;

2. Suppress a defense or claim;

3. Exclude evidence;

4. Order costs or reasonable expenses, including attorney's fees, to be paid to the State of New Jersey or an aggrieved representative or party; or

5. Take other appropriate case-related action.

History

• New Rule, R.1991 d.279, effective 6/3/1991 (operative July 1, 1991).
• See: 23 N.J.R. 639(a), 23 N.J.R. 1786(a).
• Amended by R.1996 d.133, effective 3/18/1996.
• See: 27 N.J.R. 609(a), 28 N.J.R. 1503(a).
• Added (b) through (d).
• Recodified in part to N.J.A.C. 1:1-14.15 by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Recodified (b) through (d) as N.J.A.C. 1:1-14.15.

N.J. Admin. Code § 1:1-14.15 Conduct obstructing or tending to obstruct the conduct of a contested case

(a) If any party, attorney, or other representative of a party, engages in any misconduct which, in the opinion of the judge, obstructs or tends to obstruct the conduct of a contested case, the party, attorney, or other representative may be fined in an amount which shall not exceed $ 1,000 for each instance.

(b) Where the conduct deemed to obstruct or tending to obstruct the conduct of a contested case occurs under circumstances which the judge personally observes and which he or she determines unmistakably demonstrates willfulness and requires immediate adjudication to permit the proceedings to continue in an orderly and proper manner:

1. The judge shall inform the party, attorney or other representative of the nature of the actions deemed obstructive and shall afford the party, attorney or other representative an immediate opportunity to explain the conduct; and

2. Where the judge determines, after providing the party, attorney or other representative, an opportunity to explain, that the conduct does constitute misconduct and that the conduct unmistakably demonstrates willfulness, the judge shall issue an order imposing sanctions.

i. The order imposing sanctions shall recite the facts and contain a certification by the judge that he or she personally observed the conduct in question and explain the conclusion that the party, attorney or other representative engaged in misconduct.

(c) Where the conduct deemed to obstruct or tending to obstruct a contested case did not occur in the presence of the judge or where the conduct does not require immediate adjudication to permit the proceedings to continue in an orderly and proper manner, the matter shall proceed by order to show cause specifying the acts or omissions alleged to be misconduct. The proceedings shall be captioned "In the Matter of _______, Charged with Misconduct."

(d) In any proceeding held pursuant to (c) above, the matter may be presented by a staff attorney of the Office of Administrative Law, or by the Attorney General. The designation shall be made by the Director of the Office of Administrative Law. The matter shall not be heard by the judge who instituted the proceeding if the appearance of objectivity requires a hearing by another judge.

History

• Recodified in part from N.J.A.C. 1:1-14.14 and amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Recodified former introductory paragraph of (b) as (a); in (a), substituted a period for "provided:"; recodified former (b)1 as introductory paragraph of (b); in introductory paragraph of (b), substituted a colon for ", the"; inserted designation (b)1; in (b)1, inserted "The" at the beginning and "and" at the end; in (b)2, inserted "and that the conduct unmistakably demonstrates willfulness" and substituted a period for "which" at the end; inserted designation (b)2i; and rewrote (b)2i and (c).

Subchapter 15 EVIDENCE RULES

N.J. Admin. Code § 1:1-15.1 General rules

(a) Only evidence which is admitted by the judge and included in the record shall be considered.

(b) Evidence rulings shall be made to promote fundamental principles of fairness and justice and to aid in the ascertainment of truth.

(c) Parties in contested cases shall not be bound by statutory or common law rules of evidence or any formally adopted in the New Jersey Rules of Evidence except as specifically provided in these rules. All relevant evidence is admissible except as otherwise provided herein. A judge may, in his or her discretion, exclude any evidence if its probative value is substantially outweighed by the risk that its admission will either:

1. Necessitate undue consumption of time; or

2. Create substantial danger of undue prejudice or confusion.

(d) If the judge finds at the hearing that there is no bona fide dispute between the parties as to any unstipulated material fact, such fact may be proved by any relevant evidence, and exclusionary rules shall not apply, except for (c) above or a valid claim of privilege.

(e) When the rules in this subchapter state that the qualification of a person to be a witness, or the admissibility of evidence, or the existence of a privilege is subject to a condition, and the fulfillment of the condition is in issue, the judge shall hold a preliminary inquiry to determine the issue. The judge shall indicate which party has the burden of producing evidence and the burden of proof on such issue as implied by the rule under which the question arises. No evidence may be excluded in determining such issue except pursuant to the judge's discretion under (c) above or a valid claim of privilege. This provision shall not be construed to restrict or limit the right of a party to introduce evidence subsequently which is relevant to weight or credibility.

N.J. Admin. Code § 1:1-15.2 Official notice

(a) Official notice may be taken of judicially noticeable facts as explained in N.J.R.E. 201 of the New Jersey Rules of Evidence.

(b) Official notice may be taken of generally recognized technical or scientific facts within the specialized knowledge of the agency or the judge.

(c) Parties must be notified of any material of which the judge intends to take official notice, including preliminary reports, staff memoranda or other noticeable data. The judge shall disclose the basis for taking official notice and give the parties a reasonable opportunity to contest the material so noticed.

History

• Amended by R.1996 d.343, effective 8/5/1996.
• See: 28 N.J.R. 2433(a), 28 N.J.R. 3779(a).
• In (a) updated Rules of Evidence citation.

N.J. Admin. Code § 1:1-15.3 Presumptions

No evidence offered to rebut a presumption may be excluded except pursuant to the judge's discretion under N.J.A.C. 1:1-15.1(c) or a valid claim of privilege.

N.J. Admin. Code § 1:1-15.4 Privileges

The rules of privilege recognized by law or contained in the following New Jersey Rules of Evidence shall apply in contested cases to the extent permitted by the context and similarity of circumstances: N.J.R.E. 502 (Definition of Incrimination); N.J.R.E. 503 (Self-incrimination); N.J.R.E. 504 (Lawyer-Client Privilege); N.J.S.A. 45:14B-28 (Psychologist's Privilege); N.J.S.A. 2A:84-22.1 et seq. (Patient and Physician Privilege); N.J.S.A. 2A:84A-22.8 and N.J.S.A. 2A:84A-22.9 (Information and Data of Utilization Review Committees of Hospitals and Extended Care Facilities); N.J.S.A. 2A:84A-22.13 et seq. (Victim Counselor Privilege); N.J.R.E. 508 (Newsperson's Privilege); N.J.R.E. 509 (Marital Privilege-Confidential Communications); N.J.S.A. 45:8B-29 (Marriage Counselor Privilege); N.J.R.E. 511 (Cleric-Penitent Privilege); N.J.R.E. 512 and 610 (Religious Belief); N.J.R.E. 513 (Political Vote); N.J.R.E. 514 (Trade Secret); N.J.R.E. 515 (Official Information); N.J.R.E. 516 (Identity of Informer); N.J.R.E. 530 (Waiver of Privilege by Contract or Previous Disclosure; Limitations); N.J.R.E. 531 (Admissibility of Disclosure Wrongfully Compelled); N.J.R.E. 532 (Reference to Exercise of Privileges); and N.J.R.E. 533 (Effect of Error in Overruling Claim of Privilege).

History

• Administrative Correction.
• See: 23 N.J.R. 847(a).
• Amended by R.1996 d.343, effective 8/5/1996.
• See: 28 N.J.R. 2433(a), 28 N.J.R. 3779(a).
• Updated Rules of Evidence citations.
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Substituted "Cleric-Penitent Privilege" for "Priest Penitent Privilege".
• Amended by R.2009 d.112, effective 4/6/2009.
• See: 41 N.J.R. 5(a), 41 N.J.R. 1391(a).
• Deleted "N.J.R.E 501 (Privilege of Accused)" following "similarity of circumstances:".

N.J. Admin. Code § 1:1-15.5 Hearsay evidence; residuum rule

(a) Subject to the judge's discretion to exclude evidence under N.J.A.C. 1:1-15.1(c) or a valid claim of privilege, hearsay evidence shall be admissible in the trial of contested cases. Hearsay evidence which is admitted shall be accorded whatever weight the judge deems appropriate taking into account the nature, character and scope of the evidence, the circumstances of its creation and production, and, generally, its reliability.

(b) Notwithstanding the admissibility of hearsay evidence, some legally competent evidence must exist to support each ultimate finding of fact to an extent sufficient to provide assurances of reliability and to avoid the fact or appearance of arbitrariness.

LAW REVIEW AND JOURNAL COMMENTARIES:

Approaching Hearsay at Administrative Hearings: Hearsay Evidence and the Residuum Rule. Joseph R. Morano, 180 N.J. Lawyer 22 (1996).

N.J. Admin. Code § 1:1-15.6 Authentication and content of writings

Any writing offered into evidence which has been disclosed to each other party at least 10 days prior to the hearing shall be presumed authentic. At the hearing any party may raise questions of authenticity. Where a genuine question of authenticity is raised the judge may require some authentication of the questioned document. For these purposes the judge may accept a submission of proof, in the form of an affidavit, certified document or other similar proof, no later than 10 days after the date of the hearing.

History

• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Substituted "10" for "five".

N.J. Admin. Code § 1:1-15.7 Exhibits

(a) The verbatim record of the proceedings shall include references to all exhibits and, as to each, the offering party, a brief description of the exhibit stated by the offering party or the judge, and the marking directed by the judge. The verbatim record shall also include a record of the exhibits retained by the judge at the end of the proceedings and of the disposition then made of the other exhibits.

(b) Parties shall provide each party to the case with a copy of any exhibit offered into evidence. Large exhibits that cannot be placed within the judge's file may be either photographed, attached to the file, or described in the record and committed to the safekeeping of a party. All other admitted exhibits shall be retained in the judge's file until certified to the agency head pursuant to N.J.A.C. 1:1-18.1.

(c) The standard marking for exhibits shall be:

1. P = petitioner;

2. R = respondent;

3. A = appellant;

4. J = joint;

5. C = judge;

6. I = intervenor; or

7. Such other additional markings required for clarity as the judge may direct.

History

• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a) .
• In (b), substituted "shall" for "should, whenever practicable,".

N.J. Admin. Code § 1:1-15.8 Witnesses; requirements for testifying; testifying by telephone

(a) Except as otherwise provided by this subchapter, by statute or by rule establishing a privilege:

1. Every person is qualified to be a witness; and

No person has a privilege to refuse to be a witness; and

3. No person is disqualified to testify to any matter; and

4. No person has a privilege to refuse to disclose any matter or to produce any object or writing; and

5. No person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any object or writing but the judge presiding at the hearing in a contested case may not testify as a witness.

(b) A person is disqualified to be a witness if the judge finds the proposed witness is incapable of expression concerning the matter so as to be understood by the judge directly or through interpretation by one who can understand the witness, or the proposed witness is manifestly incapable of understanding the duty of a witness to tell the truth. An interpreter is subject to all the provisions of these rules relating to witnesses.

(c) As a prerequisite for the testimony of a witness there must be evidence that the witness has personal knowledge of the matter, or has special experience, training or education, if such is required. Such evidence may be provided by the testimony of the witness. In exceptional circumstances, the judge may receive the testimony of a witness conditionally, subject to evidence of knowledge, experience, training or education being later supplied in the course of the proceedings. Personal knowledge may be obtained through hearsay.

(d) A witness may not testify without taking an oath or affirming to tell the truth under the penalty provided by law. No witness may be barred from testifying because of religion or lack of it.

(e) Testimony of a witness may be presented by telephone or by video conference call, as prescribed by the Director, if, before the hearing begins, the judge finds there is good cause for permitting the witness to testify by telephone or video conference. In determining whether good cause exists, the judge shall consider:

1. Whether all parties consent to the taking of testimony by telephone;

Whether credibility is an issue;

The significance of the witness' testimony;

4. The reason for the request to take testimony by telephone; and

5. Any other relevant factor.

(f) Testimony of a witness may be given in narrative fashion rather than by question and answer format if the judge permits.

History

• Amended by47 N.J.R. 1309(a), Effective 6/15/2015

N.J. Admin. Code § 1:1-15.9 Expert and other opinion testimony

(a) If a witness is not testifying as an expert, testimony of that witness in the form of opinions or inferences is limited to such opinions or inferences as the judge finds:

1. May be rationally based on the perception of the witness; and

2. Are helpful to a clear understanding of the witness' testimony or to the fact in issue.

(b) If a witness is testifying as an expert, testimony of that witness in the form of opinions or inferences is admissible if such testimony will assist the judge to understand the evidence or determine a fact in issue and the judge finds the opinions or inferences are:

1. Based on facts and data perceived by or made known to the witness at or before the hearing; and

2. Within the scope of the special knowledge, skill, experience or training possessed by the witness.

(c) Testimony in the form of opinion or inferences which is otherwise admissible is not objectionable because it embraces the ultimate issue or issues to be decided by the judge.

(d) A witness may be required, before testifying in terms of opinions or inference, to be first examined concerning the data upon which the opinion or inference is based.

(e) Questions calling for the opinion of an expert witness need not be hypothetical in form unless, in the discretion of the judge, such form is required.

(f) If facts and data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, those facts and data upon which an expert witness bases opinion testimony need not be admissible in evidence.

N.J. Admin. Code § 1:1-15.10 Offers of settlement inadmissible

Offers of settlement, proposals of adjustment and proposed stipulations shall not constitute an admission and shall not be admissible.

N.J. Admin. Code § 1:1-15.11 Stipulations

The parties may by stipulation agree upon the facts or any portion thereof involved in any controversy. Such a stipulation shall be regarded as evidence and shall preclude the parties from thereafter challenging the facts agreed upon.

N.J. Admin. Code § 1:1-15.12 Prior transcribed testimony

(a) If there was a previous hearing in the same or a related matter which was electronically or stenographically recorded, a party may, unless the judge determines that it is necessary to evaluate credibility, offer the transcript of a witness in lieu of producing the witness at the hearing provided that the witness' testimony was taken under oath, all parties were present at the proceeding and were afforded a full opportunity to cross-examine the witness.

(b) A party who intends to offer a witness' transcribed testimony at the hearing must give all other parties and the judge at least 10 days notice prior to the commencement of the hearing of that intention and provide each with a copy of the transcript being offered.

(c) Opposing parties may subpoena the witness to appear personally. Any party may produce additional witnesses and other relevant evidence at the hearing.

(d) Provided the requirements in (a) above are satisfied, the entire controversy may be presented solely upon such transcribed testimony if all parties agree and the judge approves.

(e) Prior transcribed testimony that would be admissible as an exception to the hearsay rule under Evidence Rule 63(3) is not subject to the requirements of this section.

History

• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In (a), inserted "or a related"; in (b), substituted "10" for "five" and inserted "prior to the commencement of the hearing".

Subchapter 16 INTERVENTION AND PARTICIPATION

N.J. Admin. Code § 1:1-16.1 Who may apply to intervene; status of intervenor

(a) Any person or entity not initially a party, who has a statutory right to intervene or who will be substantially, specifically and directly affected by the outcome of a contested case, may on motion, seek leave to intervene.

(b) Persons or entities permitted to intervene shall have all the rights and obligations of a party to the proceeding.

N.J. Admin. Code § 1:1-16.2 Time of motion

(a) A motion for leave to intervene may be filed at any time after a case is initiated.

(b) If made before a case has been filed with the Office of Administrative Law, a motion for leave to intervene shall be filed with the head of the agency having jurisdiction over the case. The agency head may rule upon the motion to intervene or may reserve decision for action by a judge after the case has been filed with the Office of Administrative Law.

(c) If made after a case has been filed with the Office of Administrative Law, a motion for leave to intervene shall be filed with the judge or, if the case has not yet been assigned to a judge, with the Clerk of the Office of Administrative Law.

History

• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In (c), inserted "the judge or, if the case has not yet been assigned to a judge, with".

N.J. Admin. Code § 1:1-16.3 Standards for intervention

(a) In ruling upon a motion to intervene, the judge shall take into consideration the nature and extent of the movant's interest in the outcome of the case, whether or not the movant's interest is sufficiently different from that of any party so as to add measurably and constructively to the scope of the case, the prospect of confusion or undue delay arising from the movant's inclusion, and other appropriate matters.

(b) In cases where one of the parties is a State agency authorized by law to represent the public interest in a case, no movant shall be denied intervention solely because the movant's interest may be represented in part by said State agency.

(c) Notwithstanding (a) above, persons statutorily permitted to intervene shall be granted intervention.

N.J. Admin. Code § 1:1-16.4 Notice of opportunity to intervene or participate

Where it appears to the judge that a full determination of a case may substantially, specifically and directly affect a person or entity who is not a party to the case, the judge, on motion of any party or on his or her own initiative, may order that the Clerk or any party notify the person or entity of the proceeding and of the opportunity to apply for intervention or participation pursuant to these rules.

N.J. Admin. Code § 1:1-16.5 Alternative treatment of motions to intervene

Every motion for leave to intervene shall be treated, in the alternative, as a motion for permission to participate.

N.J. Admin. Code § 1:1-16.6 Participation; standards for participation

(a) Any person or entity with a significant interest in the outcome of a case may move for permission to participate.

(b) A motion to participate may be made at such time and in such manner as is appropriate for a motion for leave to intervene pursuant to N.J.A.C. 1:1-16.2. In deciding whether to permit participation, the judge shall consider whether the participant's interest is likely to add constructively to the case without causing undue delay or confusion.

(c) The judge shall determine the nature and extent of participation in the individual case. Participation shall be limited to:

1. The right to argue orally; or

2. The right to file a statement or brief; or

3. The right to file exceptions to the initial decision with the agency head; or

4. All of the above.

Subchapter 17 CONSOLIDATION OF TWO OR MORE CASES; MULTIPLE AGENCY JURISDICTION CLAIMS; DETERMINATIONS OF PREDOMINANT INTEREST

N.J. Admin. Code § 1:1-17.1 Motion to consolidate; when decided

(a) As soon as circumstances meriting such action are discovered, an agency head, any party or the judge may move to consolidate a case which has been transmitted to the Office of Administrative Law with any other contested case involving common questions of fact or law between identical parties or between any party to the filed case and any other person, entity or agency.

(b) This rule shall apply to cases:

1. Already filed with the Office of Administrative Law;

2. Commenced in an agency but not yet filed with the Office of Administrative Law; and

3. Commenced in an agency and not required to be filed with the Office of Administrative Law under N.J.S.A. 52:14F-8.

(c) The judge assigned to the case first transmitted to the Office of Administrative Law shall hear and rule upon the motion to consolidate.

(d) All motions to consolidate, including those involving predominant interest allegations, must be disposed of by interlocutory order prior to commencing the evidentiary hearing.

N.J. Admin. Code § 1:1-17.2 Form of motion; submission date

(a) A motion to consolidate shall address whether the matter should be consolidated considering the standards set forth in N.J.A.C. 1:1-17.3.

(b) Motions to consolidate cases which commenced in separate agencies and all replies thereto shall include a predominant interest allegation and shall be supported by a brief and affidavits. Copies of such motions and any responsive papers shall be filed with each agency if that agency is not party to the case.

(c) All consolidation motions involving cases commenced in two or more agencies shall be scheduled by the Office of Administrative Law for oral argument under N.J.A.C. 1:1-12.3.

(d) Motions for consolidation involving cases transmitted or to be transmitted to the Office of Administrative Law from a single agency shall be handled in accordance with N.J.A.C. 1:1-12.2.

History

• Amended by R.1995 d.432, effective 8/21/1995.
• See: 27 N.J.R. 2033(a), 27 N.J.R. 3155(a).
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Rewrote (a).

N.J. Admin. Code § 1:1-17.3 Standards for consolidation

(a) In ruling upon a motion to consolidate, the judge shall consider:

1. The identity of parties in each of the matters;

2. The nature of all the questions of fact and law respectively involved;

3. To the extent that common questions of fact and law are involved, the saving in time, expense, duplication and inconsistency which will be realized from hearing the matters together and whether such issues can be thoroughly, competently, and fully tried and adjudicated together with and as a constituent part of all other issues in the two cases;

4. To the extent that dissimilar questions of fact or law are present, the danger of confusion, delay or undue prejudice to any party;

The advisability generally of disposing of all aspects of the controversy in a single proceeding; and

6. Other matters appropriate to a prompt and fair resolution of the issues, including whether a case still pending in an agency is contested or is ripe to be declared contested.

N.J. Admin. Code § 1:1-17.4 Review of orders to consolidate cases from a single agency

(a) Except as provided in (b) below, orders granting or denying the consolidation of cases commenced before a single State agency shall be subject to N.J.A.C. 1:1-14.1 0.

(b) An order consolidating any matter commenced before a single agency but not transmitted to the Office of Administrative Law shall be forwarded to the agency head for review.

1. The agency head's review of the judge's order shall be completed no later than 45 days from the entry of the judge's order, except when, for good cause shown and upon notice to all parties, the time period is extended by the joint action of the Director of the Office of Administrative Law and the agency head. Where the agency head does not act on review of the judge's order within 45 days, the judge's order shall be deemed adopted.

N.J. Admin. Code § 1:1-17.5 Multiple agency jurisdiction claims; standards for determining predominant interest

(a) When a motion to consolidate pertains to contested cases filed with two or more State agencies which are asserting jurisdiction, the judge shall determine which agency, if any, has the predominant interest in the conduct and outcome of the matter. In determining this question, the following factors shall be weighed:

1. Whether more than one agency asserting jurisdiction over a common issue has jurisdiction over the issue, and if more than one agency has jurisdiction, whether the jurisdiction is mandatory for one of the agencies;

2. Whether the common issue before the two agencies is, for either agency, the sole, major or dominant issue in dispute and whether its determination would either serve to moot the remaining questions or to affect substantially their resolution;

3. Whether the allegations involve issues and interests which extend beyond the immediate parties and are of particular concern to one or the other agency;

4. Whether the claims, if ultimately vindicated, would require specialized or particularized remedial relief available in one agency but not the other;

5. Whether the common issue is clearly severable from the balance of the controversy and thus will permit non-duplicative factual and legal determinations by each agency.

N.J. Admin. Code § 1:1-17.6 Determination of motions involving consolidation of cases from multiple agencies; contents of order; exempt agency conduct

(a) In motions concerning multiple agencies, the judge shall initially determine the consolidation question. If consolidation is to be ordered, then a predominant interest determination must also be rendered in the consolidation order. If particular issues in the entire controversy are clearly severable, the judge's consolidation order shall specify which agency shall decide each such issue. Motions for consolidation involving predominant interest determinations must be decided within 45 days from the date of submission.

(b) If one agency is determined to have a predominant interest, that agency shall render the final decision on all issues within the scope of its predominant interest. The judge in the consolidation order shall specify the issues relating to the predominant issue and shall clearly identify the agency having the authority to issue a final decision on those issues.

(c) If there are requests for relief which may not be granted by the agency with the predominant interest, the judge shall in the consolidation order specify clearly which determinations by the agency with the predominant interest shall bind the agency subsequently considering any applications for relief.

(d) When an agency exempt under N.J.S.A. 52:14F-8(a) is determined to have a predominant interest in a contested case, the matter shall be heard by an administrative law judge unless the exempt agency decides, in its final order reviewing the judge's consolidation order to have the matter heard by its own personnel. If the exempt agency decides to have its own personnel hear the matter, but the hearer does not have jurisdiction over all issues within the scope of the agency's predominant interest, the hearer shall be designated a special administrative law judge as provided by N.J.S.A. 52:14F-6(b).

N.J. Admin. Code § 1:1-17.7 Review of orders involving consolidation of cases from multiple agencies

(a) All orders granting or denying consolidation of cases commenced before multiple agencies shall be forwarded by the Office of Administrative Law to the respective agency heads for their review.

(b) The agency head's review of the judge's order shall be completed no later than 45 days from the entry of the judge's order, except when, for good cause shown and upon notice to all parties, the time period is extended by the joint action of the Director of the Office of Administrative Law and the agency head. Where the agency head does not act on review of the judge's order within 45 days, the judge's order shall be deemed adopted.

(c) Agency heads considering a judge's consolidation order are encouraged to consult and coordinate with each other before issuing a final order.

N.J. Admin. Code § 1:1-17.8 Initial decision in cases involving a predominant interest; order of review; extension of time limits

(a) The judge in a consolidated case involving a predominant interest shall consider all the issues and arguments in the case and shall render a single initial decision in the form prescribed by N.J.A.C. N.J.S.A. 1:1-18, disposing of all the issues in controversy.

(b) The initial decision shall be filed first with the agency which has the predominant interest. After rendering its final decision, the agency with the predominant interest shall transmit the record, including the initial decision and its final decision, to the other agency which may subsequently render a final decision on any remaining issues and consider any specific remedies which may be within its statutory grant of authority.

(c) Upon transmitting the record, the agency with the predominant interest shall pursuant to N.J.A.C. 1:1-18.8 request an extension to permit the rendering of a final decision by the agency which does not have the predominant interest.

Subchapter 18 INITIAL DECISION; EXCEPTIONS; FINAL DECISION; REMAND; EXTENSIONS OF TIME LIMITS

N.J. Admin. Code § 1:1-18.1 Initial decision in contested cases

(a) Except as provided in N.J.A.C. 1:1-18.9, when a case is not heard directly by an agency head, the judge shall issue an initial decision which shall be based exclusively on:

1. The testimony, documents, and arguments accepted by the judge for consideration in rendering a decision;

2. Stipulations; and

3. Matters officially noticed.

(b) The initial decision shall be final in form and fully dispositive of all issues in the case.

(c) At the judge's discretion, an initial decision or recommended report may be filed in the form of a checklist in appropriate cases as prescribed by the Director after consultation with the applicable State agency.

(d) No substantive finding of fact or conclusion of law, nor any concluding order or other disposition shall be binding upon the agency head, unless otherwise provided by statute.

(e) All initial decisions shall be issued and received by the agency head no later than 45 days after the hearing is concluded unless an earlier time frame is mandated by Federal or State law.

(f) In mediations successfully concluded by initial decision, the decision shall be issued and received by the agency head as soon as practicable after the mediation, but in no event later than 45 days thereafter.

(g) Within 10 days after the initial decision is filed with the agency head, the Clerk shall certify the entire record with original exhibits to the agency head.

(h) Upon filing of an initial decision with the transmitting agency, the Office of Administrative Law relinquishes jurisdiction over the case, except for matters referred to in N.J.A.C. 1:1-3.2(c)1 through 5.

History

• Amended by47 N.J.R. 1309(a), Effective 6/15/2015

N.J. Admin. Code § 1:1-18.2 Oral initial decision

(a) The judge may render the initial decision orally in any case where the judge determines that the circumstances appropriately permit an oral decision and the questions of fact or law are sufficiently non-complex.

(b) The decision shall be issued, transcribed, filed with the agency head and mailed to the parties with an indication of the date of receipt by the agency head.

(c) In an oral decision, the judge shall identify the case, the parties, and the issue or issues to be decided and shall analyze the facts as they relate to the applicable law, and make findings of fact, conclusions of law and an appropriate order or disposition of the case. The decision shall include the statement at N.J.A.C. 1:1-18.3(c)12, and the judge shall explain to the parties that the decision is being forwarded to the agency head for disposition pursuant to N.J.S.A. 52:14B-10, and that exceptions may be addressed to the agency head. The judge need not specifically include in the oral decision the other material required by N.J.A.C. 1:1-18.3(c) as long as it is otherwise contained in the record.

History

• Amended by R.1996 d.57, effective 2/5/1996.
• See: 27 N.J.R. 4039(a), 28 N.J.R. 813(a).
• In (a) deleted "on the record before the parties" following "orally", and in (b) substituted "the conclusion of the hearing" for "rendering an oral decision".
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Rewrote (b).

N.J. Admin. Code § 1:1-18.3 Written initial decision

(a) If an oral decision is not issued, the judge shall issue a written initial decision.

(b) The written initial decision shall be filed with the agency head and shall be promptly served upon the parties with an indication of the date of receipt by the agency head.

(c) The written initial decision shall contain the following elements which may be combined and need not be separately discussed:

1. An appropriate caption;

2. The appearances of the parties and their representatives, if any;

3. A statement of the case;

4. A procedural history and list of hearing dates;

5. A statement of the issue(s);

6. A factual discussion;

7. Factual findings;

8. A legal discussion;

9. Conclusions of law;

10. A disposition;

11. A list of witnesses and of exhibits admitted into evidence; and

12. The following statement: "This recommended decision may be adopted, modified or rejected by (the head of the agency), who by law is empowered to make a final decision in this matter. However, if (the head of the agency) does not so act in 45 days and unless such time limit is otherwise extended, this recommended decision shall become a final decision in accordance with N.J.S.A. 52:14B-10."

History

• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Rewrote (b).
• Amended by R.2009 d.112, effective 4/6/2009.
• See: 41 N.J.R. 5(a), 41 N.J.R. 1391(a).
• In (c)4, inserted "and list of hearing dates"; and in (c)11, inserted "witnesses and of".

N.J. Admin. Code § 1:1-18.4 Exceptions; replies

(a) Within 13 days from the date the judge's initial decision was mailed to the parties, any party may file written exceptions with the agency head. A copy of the exceptions shall be served on all other parties and the judge. Exceptions to orders issued under N.J.A.C. 1:1-3.2(c)4 shall be filed with the Director of the Office of Administrative Law.

(b) The exceptions shall:

1. Specify the findings of fact, conclusions of law or dispositions to which exception is taken;

2. Set out specific findings of fact, conclusions of law or dispositions proposed in lieu of or in addition to those reached by the judge;

3. Set forth supporting reasons. Exceptions to factual findings shall describe the witnesses' testimony or documentary or other evidence relied upon. Exceptions to conclusions of law shall set forth the authorities relied upon.

(c) Evidence not presented at the hearing shall not be submitted as part of an exception, nor shall it be incorporated or referred to within exceptions.

(d) Within five days from receipt of exceptions, any party may file a reply with the agency head, serving a copy thereof on all other parties and the judge. Such replies may address the issues raised in the exceptions filed by the other party or may include submissions in support of the initial decision.

(e) In all settlements, exceptions and cross-exceptions shall not be filed, unless permitted by the judge or agency head.

History

• Amended by R.1987 d.462, effective 11/16/1987.
• See: 19 N.J.R. 1592(a), 19 N.J.R. 2131(b).
• (a) substantially amended.
• Amended by R.1990 d.483, effective 9/17/1990.
• See: 22 N.J.R. 2067(a), 22 N.J.R. 3003(b).
• Change at (a) from ten to thirteen days.
• Amended by R.1991 d.44, effective 2/4/1991.
• See: 22 N.J.R. 3278(b), 23 N.J.R. 293(a).
• In (a) and (d): deleted filing of documents with the Clerk and added text indicating which documents shall be filed with the judge.
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In (d), substituted "may address the issues raised in the exceptions filed by the other party or may include" for "may include cross-exceptions or".

N.J. Admin. Code § 1:1-18.5 Motions to reconsider and reopen

(a) Motions to reconsider an initial decision are not permitted.

(b) Motions to reopen a hearing after an initial decision has been filed must be addressed to the agency head.

(c) Motions to reopen the record before an initial decision is filed must be addressed to the judge and may be granted only for extraordinary circumstances.

N.J. Admin. Code § 1:1-18.6 Final decision; stay of implementation

(a) Within 45 days after the receipt of the initial decision, or sooner if an earlier time frame is mandated by Federal or State law, the agency head may enter an order or a final decision adopting, rejecting or modifying the initial decision. Such an order or final decision shall be served upon the parties and the Clerk forthwith.

(b) The agency head may reject or modify conclusions of law, interpretations of agency policy, or findings of fact not relating to issues of credibility of lay witness testimony, but shall clearly state the reasons for so doing. The order or final decision rejecting or modifying the initial decision shall state in clear and sufficient detail the nature of the rejection or modification, the reasons for it, the specific evidence at hearing and interpretation of law upon which it is based and precise changes in result or disposition caused by the rejection or modification.

(c) The agency head may not reject or modify any finding of fact as to issues of credibility of lay witness testimony unless it first determines from a review of a record that the findings are arbitrary, capricious or unreasonable, or are not supported by sufficient, competent, and credible evidence in the record.

(d) An order or final decision rejecting or modifying the findings of fact in an initial decision shall be based upon substantial evidence in the record and shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent and credible evidence in the record.

(e) If an agency head does not reject or modify the initial decision within 45 days and unless the period is extended as provided by N.J.A.C. 1:1-18.8, the initial decision shall become a final decision.

(f) When a stay of the final decision is requested, the agency shall respond to the request within 10 days.

History

• Amended by R.2001 d.180, effective 6/4/2001 (operative July 1, 2001).
• See: 33 N.J.R. 1040(a), 33 N.J.R. 1926(a).
• Rewrote (b); added new (c) and (d), and recodified existing (c) and (d) as (e) and (f).

N.J. Admin. Code § 1:1-18.7 Remand; procedure

(a) An agency head may enter an order remanding a contested case to the Office of Administrative Law for further action on issues or arguments not previously raised or incompletely considered. The order of remand shall specifically state the reason and necessity for the remand and the issues or arguments to be considered. The remand order shall be attached to a N.J.A.C. 1:1-8.2 transmittal form and returned to the Clerk of the Office of Administrative Law along with the case record.

(b) The judge shall hear the remanded matter and render an initial decision.

N.J. Admin. Code § 1:1-18.8 Extensions of time limits

(a) Time limits for filing an initial decision, filing exceptions and replies and issuing a final decision may be extended for good cause.

(b) A request for extension of any time period must be submitted no later than the day on which that time period is to expire. This requirement may be waived only in case of emergency or other unforeseeable circumstances.

(c) Requests to extend the time limit for initial decisions shall be submitted in writing to the Director of the Office of Administrative Law. If the Director concurs in the request, he or she shall sign a proposed order no later than the date the time limit for the initial decision is due to expire and shall forward the proposed order to the transmitting agency head. If the agency head approves the request, he or she shall within 10 days of receipt of the proposed order sign the proposed order and return it to the Director, who shall issue the order and cause it to be served on all parties.

(d) Requests to extend the time limit for exceptions and replies shall be submitted in writing to the transmitting agency head and served on all parties. If the agency head approves the request, he or she shall within 10 days sign and issue the order and cause it to be served on all parties. If the extended time limit necessitates an extension of the deadline for the final decision, the requirements of (e) below apply.

(e) An agency head may request a single extension of the time limit for filing a final decision for good cause. He or she shall sign and forward a proposed order to the Director of the Office of Administrative Law. If the Director approves the request, he or she shall within 10 days of receipt of the proposed order sign the proposed order and return it to the transmitting agency head, who shall issue the order and cause it to be served on all parties. Any additional request for an extension is contingent upon the unanimous consent of the parties. To be considered for approval, proposed orders for extensions must state the names of the consenting parties. First requests for extensions and second requests where the agency is only requesting the extension pursuant to N.J.A.C. 1:1-17.8(c) are exempt from the requirement to obtain unanimous consent.

(f) Any order granting an extension must set forth the factual basis constituting good cause for the extension, and establish a new time for filing the decision or exceptions and replies. Extensions for filing initial or final decisions may not exceed 45 days from the original decision due date. Additional extensions of not more than 45 days each may be granted only for good cause shown. For final decisions, the order must additionally state that unanimous consent to extend the due date was obtained from the parties.

History

• Amended by47 N.J.R. 1309(a), Effective 6/15/2015

N.J. Admin. Code § 1:1-18.9 Final decisions by administrative law judges

(a) Where the head of an agency determines that the decision or recommended report of the administrative law judge, in a case or in a class of cases, will serve as the final agency decision, the head of agency shall file with the Director a written order describing the case or class of cases. The order shall apply to all cases described therein commenced with the agency after the order's issuance.

(b) For all cases in (a) above, the decision of the administrative law judge shall be the final agency decision on the matter and it will be deemed adopted by the head of agency on the date the decision is filed with the agency. The head of agency shall not have the opportunity to reject or modify the administrative law judge's recommended report or decision.

(c) The order delegating final decisions may be rescinded or modified by order filed by the head of agency with the Director. The rescission or modification shall be effective for all cases filed with the agency after the rescission or modification order is filed with the Director.

History

• Adopted by47 N.J.R. 1309(a), Effective 6/15/2015

Subchapter 19 SETTLEMENTS AND WITHDRAWALS

N.J. Admin. Code § 1:1-19.1 Settlements

(a) Where the parties to a case wish to settle the matter, and the transmitting agency is not a party, the judge shall require the parties to disclose the full settlement terms:

1. In writing, by consent order or stipulation signed by all parties or their attorneys; or

2. Orally, by the parties or their representatives.

(b) Under (a) above, if the judge determines from the written order/stipulation or from the parties' testimony under oath that the settlement is voluntary, consistent with the law and fully dispositive of all issues in controversy, the judge shall issue an initial decision incorporating the full terms and approving the settlement.

(c) Where the parties to a case wish to settle the matter and the transmitting agency is a party to the case, if the agency head has approved the terms of the settlement, either personally or through an authorized representative, the parties shall:

1. File with the Clerk and the assigned judge, if known, a stipulation of dismissal, signed by the parties, their attorneys, or their non-lawyer representatives when authorized pursuant to N.J.A.C. 1:1-5.5(f); or

2. If the parties prefer to have the settlement terms incorporated in the record of the case, then the full terms of the settlement shall be disclosed in a consent order signed by the parties, their attorneys, or their non-attorney representatives when authorized pursuant to N.J.A.C. 1:1-5.5(f). The consent order shall be filed with the Clerk and the assigned judge, if known.

(d) The stipulation of dismissal or consent order under (c) above shall be deemed the final decision.

History

• Amended by R.1987 d.461, effective 11/16/1987.
• See: 19 N.J.R. 1593(a), 19 N.J.R. 2131(c).
• (b)1.-2. added to clarify that in those cases where the agency head, either in person or through counsel, has consented to the settlement terms.
• Amended by R.1995 d.300, effective 6/19/1995.
• See: 27 N.J.R. 1343(a), 27 N.J.R. 2383(a).
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In the introductory paragraph of (a), substituted "transmitting agency is not a party" for "agency head has not consented to the settlement terms"; and rewrote (c).

N.J. Admin. Code § 1:1-19.2 Withdrawals

(a) A party may withdraw a request for a hearing or a defense raised by notifying the judge and all parties. Upon receipt of such notification, the judge shall discontinue all proceedings and return the case file to the Clerk. If the judge deems it advisable to state the circumstances of the withdrawal on the record, the judge may enter an initial decision memorializing the withdrawal and returning the matter to the transmitting agency for appropriate disposition.

(b) When a party withdraws, the Clerk shall return the matter to the agency which transmitted the case to the Office of Administrative Law for appropriate disposition.

(c) After the Clerk has returned the matter, a party shall address to the transmitting agency head any motion to reopen a withdrawn case.

History

• Amended by R.1990 d.71, effective 2/5/1990.
• See: 21 N.J.R. 3589(a), 22 N.J.R. 334(b).
• In (a): deleted language specifying the entering of an initial decision for withdrawals and added, "discontinue . . . for appropriate disposition".
• In (b): specified that Clerk shall return matter to agency which had transmitted the case to OAL.
• In (c): deleted language referring to decision granting withdrawal.
• Amended by R.1991 d.44, effective 2/4/1991.
• See: 22 N.J.R. 3278(b), 23 N.J.R. 293(a).
• In (a): deleted "in writing" from withdrawal procedure request.

Subchapter 20 ALTERNATIVE DISPUTE RESOLUTION BY THE OFFICE OF ADMINISTRATIVE LAW

N.J. Admin. Code § 1:1-20.1 Scheduling of alternative dispute resolution

(a) The Director may assign an administrative law judge or other personnel to conduct mediation or other forms of alternative dispute resolution with regard to any matter filed with the Office of Administrative Law.

(b) Mediation may be scheduled, at the discretion of the Director, when requested by the transmitting agency, or by all parties to a hearing or when requested by an agency with regard to a matter which has not been transmitted as a contested case. Mediation may be scheduled in any matter where the transmitting agency has a mediation program available to the parties to the case only upon request of the agency head for good cause and with the consent of the Director.

(c) When a request for mediation is granted, the Office of Administrative Law shall supply the parties with a list containing not less than six administrative law judges as suggested mediators. Each party may strike two judges from the list and the Office of Administrative Law will not assign any judge who has been stricken from the list to conduct the mediation. The Office of Administrative Law shall notify the parties of the assigned mediator.

History

• Amended by47 N.J.R. 1309(a), Effective 6/15/2015

N.J. Admin. Code § 1:1-20.2 Conduct of mediation

(a) Mediation shall be conducted in accordance with the following procedures:

1. Discovery to prepare for mediation shall be permitted at the discretion of the judge.

2. All parties to the mediation shall make available for the mediation a person who has authority to bind the party to a mediated settlement.

3. Parties may not use any information gained solely from the mediation in any subsequent proceeding.

4. Parties may not subpoena the mediator for any subsequent proceeding.

5. Parties may not disclose to any subsequently assigned judge the content of the mediation discussion.

6. Parties shall mediate in good faith.

7. Any agreement of the parties derived from the mediation shall be binding on the parties and will have the effect of a contract in subsequent proceedings.

(b) If any party fails to appear at the mediation, without explanation being provided for the nonappearance, the mediator shall return the matter to the Clerk for scheduling a hearing or for return of the matter to the agency and, where appropriate, the mediator may consider sanctions under N.J.A.C. 1:1-14.1 4.

(c) The mediator may at any time return the matter to the Clerk and request that a hearing be scheduled before another judge or that the matter be returned to the agency.

(d) No particular form of mediation is required. The structure of the mediation shall be tailored to the needs of the particular dispute. Where helpful, parties may be permitted to present any documents, exhibits, testimony or other evidence which would aid in the attainment of a mediated settlement.

(e) In no event shall mediation efforts continue beyond 30 days from the date of the first scheduled mediation unless this time limit is extended by agreement of all the parties.

History

• Amended by R.1991 d.279, effective 6/3/1991 (operative July 1, 1991).
• See: 23 N.J.R. 639(a), 23 N.J.R. 1786(a).
• In (a)5, revised N.J.A.C. citation.
• Recodified from N.J.A.C. 1:1-20.1 and amended by R.1999 d.413, effective 12/6/1999.
• See: 31 N.J.R. 2290(a), 31 N.J.R. 2717(a), 31 N.J.R. 3999(a).
• In (a), deleted a former 2, and recodified former 3 through 7 as 2 through 6. Former N.J.A.C. 1:1-20.2, Conclusion of mediation, recodified to N.J.A.C. 1:1-20.3.
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Added new (a)1; recodified former (a)1 through (a)6 as (a)2 through (a)7; in (a)5, inserted "or for return of the matter to the agency" and "the mediator"; and in (a)6, inserted "or that the matter be returned to the agency".
• Amended by R.2009 d.112, effective 4/6/2009.
• See: 41 N.J.R. 5(a), 41 N.J.R. 1391(a).
• Rewrote (a)3 and (a)4; added new (a)5 through (a)7; recodified former (a)5 through (a)7 as (b) through (d); and recodified former (b) as (e).

N.J. Admin. Code § 1:1-20.3 Conclusion of mediation

(a) If the transmitting agency is a party to the mediation, successful mediation shall be concluded by a mediation agreement.

(b) If the transmitting agency is not a party, successful mediation shall be concluded by initial decision. The initial decision shall be issued and received by the agency head as soon as practicable after the mediation, but in no event later than 45 days thereafter.

(c) If mediation does not result in agreement, the matter shall be returned to the Clerk for scheduling appropriate proceeding or for return to the transmitting agency.

History

• Amended by R.1997 d.158, effective 4/7/1997.
• See: 29 N.J.R. 282(a), 29 N.J.R. 1295(a).
• In (c), inserted "or for return to the transmitting agency".
• Recodified from N.J.A.C. 1:1-20.2 by R.1999 d.413, effective 12/6/1999.
• See: 31 N.J.R. 2290(a), 31 N.J.R. 2717(a), 31 N.J.R. 3999(a).
• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In (b), inserted the last sentence.

Subchapter 21 UNCONTESTED CASES IN THE OFFICE OF ADMINISTRATIVE LAW

N.J. Admin. Code § 1:1-21.1 Transmission to the Office of Administrative Law

(a) Any agency head may request under N.J.S.A. 52:14F-5(o) the assignment of an administrative law judge to conduct an uncontested case, including rule making and investigatory hearings. Public or investigatory hearings conducted pursuant to a rulemaking shall proceed in accordance with N.J.S.A. 52:14B-4(g). The agency head may make such a request by letter and by completing the applicable portions of an N.J.A.C. 1:1-8.2 transmittal form.

(b) The letter of request and transmittal form shall be filed with the Clerk of the Office of Administrative Law, together with any attachments, after all pleadings and notice requirements have been concluded.

N.J. Admin. Code § 1:1-21.2 Discovery

(a) Unless other discovery arrangements are requested by the transmitting agency and agreed to by the Director of the Office of Administrative Law, discovery in uncontested cases shall consist of the following:

1. If an agency or a county/local governmental entity is a party to an uncontested case hearing, and the subject of the case is the county/local entity's or agency's action, proposed action or refusal to act, a party shall be permitted to review the entity's or agency's relevant file or files on the matter. Copies of any document in the file or files shall be provided to the party upon the party's request and for a reasonable copying charge. The agency or county/local entity may refuse to disclose any document subject to a bona fide claim of privilege.

2. If the subject of an uncontested case hearing is not a county/local entity's or agency's action, proposed action or refusal to act, each party shall provide each other party copies of any documents and a list with names, addresses and telephone numbers of any witnesses including experts which the party intends to introduce at the hearing. A summary of the testimony expected to be provided by each witness shall be included. These items shall be exchanged at least 10 days prior to the hearing, unless the judge determines that the information could not reasonably have been disclosed within that time.

(b) Any discovery other than that permitted in (a)1 and 2 above shall be by motion to the judge and for good cause shown.

History

• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In (a)2, substituted "10" for "five"; and deleted (c).

N.J. Admin. Code § 1:1-21.3 Representation

In uncontested cases conducted by the Office of Administrative Law, representation shall not be regulated by N.J.A.C. N.J.S.A. 1:1-5.

N.J. Admin. Code § 1:1-21.4 Conduct of uncontested cases

(a) Unless other arrangements are requested by the transmitting agency and agreed to by the Director of the Office of Administrative Law, uncontested cases shall proceed in the following manner:

Uncontested cases shall begin with the judge reading the case title and the docket number, asking the representatives or parties present to state their names for the record and stating briefly the matter in dispute. The judge shall also, unless all parties are represented by counsel or otherwise familiar with the procedures, state the procedural rules for the hearing. The judge may also permit any stipulations, settlement agreements or consent orders entered into by any of the parties prior to the hearing to be entered into the record.

2. In a sequence determined by the judge, each party to the proceeding shall be permitted to make a presentation setting forth the factual and/or legal basis for its position. When the parties are disputing the facts, the judge shall administer an oath to any party who wishes to make a presentation. The judge may also permit the parties to ask questions, either at the conclusion of each presentation or at the conclusion of all presentations, in the manner and to the extent that he or she determines most suitable.

Subject to a bona fide claim of privilege, documents or other tangible items or the written statements of an individual may be entered into the record if they are helpful to an understanding of the situation.

4. No rules of evidence apply to these proceedings.

5. Proposed findings of fact, conclusions of law, briefs, forms of order or other dispositions may be submitted prior to the beginning of the hearing. Such documents may not be accepted thereafter, nor required of the parties at any time unless all parties agree to provide such submissions and the time for issuing the judge's report is not extended.

6. The proceeding shall be deemed concluded on the date the judge determines that no further presentations under (a)2 above shall be necessary.

N.J. Admin. Code § 1:1-21.5 Report

(a) In uncontested cases, the judge shall issue a report to the transmitting agency head which shall deal with each issue presented. The report shall explain the subject matter of the proceeding and the position of each party, shall recommend a course of action and shall set forth the factual or legal basis for the recommendation.

(b) The report may be rendered in writing or orally on the record at the hearing before the parties. If the report is rendered orally, it shall be transcribed and filed with the agency head and mailed to the parties.

(c) The report shall be issued within 45 days after the hearing is concluded unless expedition is required.

N.J. Admin. Code § 1:1-21.6 Extensions

Requests for an extension of any time limit associated with an uncontested case shall be taken to the transmitting agency head.

History

• Amended by R.1987 d.464, effective 11/16/1987.
• See: 19 New Jersey Register 1593(b), 19 New Jersey Register 2131(d).
• Repealed old 21.6 exceptions and cross-exceptions and recodified this section from 21.7.

Chapter 4A CIVIL SERVICE COMMISSION HEARINGS

Subchapter 1 APPLICABILITY

N.J. Admin. Code § 1:4A-1.1 Applicability

(a) The rules in this chapter shall apply to hearings involving:

1. Major discipline arising under N.J.A.C. 4A:2-2.2;

2. Resignation not in good standing arising under N.J.A.C. 4A:2-6.2; and

3. Termination from service at the conclusion of a working test period due to unsatisfactory performance under N.J.A.C. 4A:2-4.1.

(b) Any aspect of the hearing not covered by these special rules shall be governed by the Uniform Administrative Procedure Rules (UAPR) at N.J.A.C. 1:1. To the extent that these rules are inconsistent with the UAPR, these rules shall apply.

History

• Adopted by 49 N.J.R. 1847(a), effective 7/3/2017

Subchapter 10 DISCOVERY

N.J. Admin. Code § 1:4A-10.1 Discovery

(a) Except for major discipline termination cases, discovery shall be provided pursuant to this section. Discovery in termination cases shall be pursuant to N.J.A.C. N.J.S.A. 1:1-10.

(b) The employee shall be permitted to review the appointing authority's entire file or files on the matter. Copies of any document in the file or files shall be provided to the employee upon request and for a reasonable copying charge. See N.J.S.A. 47:1A-5. The appointing authority may refuse to disclose any document subject to a bona fide claim of privilege.

(c) Each party shall provide each other party copies of any documents and a list with names, addresses, and telephone numbers of any witnesses, including experts, which the party intends to introduce at the hearing. A summary of the testimony expected to be provided by each witness shall be included. These items shall be exchanged at least 10 days prior to the hearing, unless the judge determines that the information could not reasonably have been disclosed within that time.

(d) Any discovery other than that permitted in (a) and (b) above shall be by motion to the judge and for good cause shown.

(e) The hearing date shall not be adjourned to permit discovery.

History

• Adopted by 49 N.J.R. 1847(a), effective 7/3/2017

Subchapter 14 CONDUCT OF CASES

N.J. Admin. Code § 1:4A-14.1 Conduct of hearing; limitation on post hearing submissions

No proposed findings of fact, including conclusions of law, briefs, forms of order, or other dispositions may be offered or required after the final argument, except for the purpose of expressing the terms of a settlement, unless expressly permitted by the judge for good cause.

History

• Adopted by 49 N.J.R. 1847(a), effective 7/3/2017

Subchapter 17 CONSOLIDATION AND PREDOMINANT INTEREST IN CASES INVOLVING POLICE TRAINING COMMISSION

N.J. Admin. Code § 1:4A-17.1 Consolidation and predominant interest

In any instance where a case proceeding under this chapter is based upon the termination of a law enforcement officer from an approved school or program for failure to meet the standards of N.J.S.A. 52:17B-71, which has been appealed to the Police Training Commission pursuant to N.J.A.C. 13:1-9.1, an order consolidating the matters shall be issued, and the Police Training Commission shall be deemed to have the predominant interest.

History

• Adopted by 49 N.J.R. 1847(a), effective 7/3/2017

N.J. Admin. Code § 1:4A-17.2 Review of orders involving consolidation with a Police Training Commission case

In any instance where a case proceeding under this chapter is consolidated with a Police Training Commission case, a party may file arguments opposing or supporting the consolidation and predominant interest order with the agency heads within five working days from receipt of the order.

History

• Adopted by 49 N.J.R. 1847(a), effective 7/3/2017

Chapter 4B CIVIL SERVICE COMMISSION LAW ENFORCEMENT OFFICER AND FIREFIGHTER CASES

Subchapter 1 APPLICABILITY

N.J. Admin. Code § 1:4B-1.1 Applicability

(a) The rules in this chapter shall apply to any hearings arising under N.J.S.A. 40A:14-200 et seq., the act concerning suspensions of certain law enforcement officers and firefighters, and implement the provisions of that act.

(b) These rules shall not apply when a complaint or charge relates to the subject matter of a pending criminal investigation, inquiry, complaint, or charge, whether pre-indictment or post indictment or when a complaint or charge allege conduct that would constitute of a violation of the criminal laws of the state or any other jurisdiction.

(c) These special rules should be read in conjunction with the Civil Service Commissions' rule at N.J.A.C. 4A:2-2.1 3.

(d) Any aspect of the Office of Administrative Law hearing not covered by these special hearing rules shall be governed by the Uniform Administrative Procedure Rules (UAPR) contained in N.J.A.C. 1:1. To the extent that these special rules are inconsistent with the UAPR, these rules shall apply.

Subchapter 2 DEFINITIONS

N.J. Admin. Code § 1:4B-2.1 Definitions

The following words and terms, as used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

"Law enforcement agency" or "agency" means any public agency, police force, department, or division within the State, or any county or municipality thereof which, is empowered by statute to act for the detection, investigation, arrest, conviction, detention, or rehabilitation of persons violating the criminal laws of this State. Law enforcement agency shall include the Juvenile Justice Commission, but shall not otherwise include the Department of Law and Public Safety.

"Law enforcement officer" or "officer" means any person who is employed as a permanent full-time member of any State, county, or municipal law enforcement agency who is statutorily empowered to act for the detection, investigation, arrest, conviction, detention, or rehabilitation of persons violating the criminal laws of this State and statutorily required to successfully complete a training course approved by, or certified as being substantially equivalent to such an approved course, by the Police Training Commission pursuant to N.J.S.A. 52:17B-66 et seq.

"Paid firefighter" or "firefighter" means any full-time paid firefighter employed by a public fire department as provided in N.J.S.A. 40A:14-200.

"Public fire department" or "department" means any department of a municipality, county, fire district or the State or any agency thereof having employees engaged in firefighting provided that such firefighting employees are included in a negotiating unit exclusively comprised of firefighting employees.

Subchapter 3 COMMENCEMENT OF CONTESTED CASES; TIME FOR FILING

N.J. Admin. Code § 1:4B-3.1 Commencement of contested cases

(a) All appeals by a law enforcement officer or firefighter shall be simultaneously filed with the Clerk of the Office of Administrative Law and with the Civil Service Commission. Appeals shall be submitted on the Law Enforcement Officer and Firefighter Removal Appeal form, incorporated herein by reference as the chapter Appendix.

(b) A copy of the Preliminary Notice of Disciplinary Action and of the Final Notice of Disciplinary Action must be attached to the Notice of Appeal.

(c) The Office of Administrative Law will notify the appellant if an appeal fails to provide information specified in (a) and (b) above or fails to provide all information required by the Law Enforcement Officer and Firefighter Removal Appeal form. Such notice will specify the deficiency and will provide the appellant an additional 20 days to supply the missing information.

(d) If a party fails to correct deficiencies in an appeal after notification of such deficiency by the Office of Administrative Law pursuant to (c) above within 20 days of issuance of such notice, the Office of Administrative Law may issue an initial decision dismissing the appeal.

History

• Amended by R.2012 d.054, effective 3/5/2012.
• See: 43 N.J.R. 2391(a), 44 N.J.R. 573(a).
• Rewrote (c); and added (d).

N.J. Admin. Code § 1:4B-3.2 Time for filing

(a) All appeals shall be filed within 20 days from the date of receipt of the final notice of disciplinary action.

1. If a party properly files an appeal with either the Office of Administrative Law or the Civil Service Commission, but does not simultaneously file the appeal with the other agency, the appeal shall be deemed timely, provided, however, that the calendar days that accrue pending filing in both agencies shall not be used in calculating the date on which the officer or firefighter is entitled to receive his or her base salary pending a final determination of the appeal.

(b) If an appeal is not timely filed, the Office of Administrative Law will notify the Civil Service Commission. The Civil Service Commission will dismiss any untimely appeal.

(c) Notwithstanding (b) above, the appointing authority may raise the issue of the timeliness of the appeal at any time.

(d) The filing date for purposes of N.J.S.A. 40A:14-201 shall be the date that all information specified in N.J.A.C. 1:4B-3.1(a) and (b) and confirmation of receipt of the $ 20.00 fee from the Civil Service Commission have all been received at the Office of Administrative Law.

History

• Amended by R.2012 d.054, effective 3/5/2012.
• See: 43 N.J.R. 2391(a), 44 N.J.R. 573(a).
• Added (d).

Subchapter 10 DISCOVERY

N.J. Admin. Code § 1:4B-10.1 Discovery

(a) Except as provided by (b) below, discovery shall be available pursuant to N.J.A.C. N.J.S.A. 1:1-10.

(b) The parties shall commence discovery immediately upon receipt of the notice of filing. Discovery requests shall be initiated no later than 30 days of receipt of the notice of filing.

Subchapter 14 CONDUCT OF HEARING; LIMITATION ON POST HEARING SUBMISSIONS

N.J. Admin. Code § 1:4B-14.1 Conduct of hearing; limitation on post hearing submissions

No proposed findings of fact, including conclusions of law, briefs, forms of order or other dispositions, may be offered after the final argument, except for the purpose of expressing the terms of a settlement, unless expressly permitted by the judge for good cause.

Subchapter 18 EXTENSIONS OF TIME LIMITS

N.J. Admin. Code § 1:4B-18.1 Extensions of time limits

(a) Extensions of time limits for filing an initial decision and for filing exceptions shall be governed by N.J.A.C. 1:1-18.8.

(b) The Civil Service Commission may, at its discretion, extend the period for issuance of the final decision by no more than 15 additional days. If the Commission requires additional time to render the final decision, it shall sign and forward an order of extension to the Director of the Office of Administrative Law and serve copies on all parties.

(c) Any order granting an extension must set forth the factual basis constituting good cause for the extension, and establish a new time for filing the decision or exceptions and replies.

Chapter 6A SPECIAL EDUCATION PROGRAM

Subchapter 1 APPLICABILITY

N.J. Admin. Code § 1:6A-1.1 Applicability

(a) The rules in this chapter shall apply to the notice and hearing of matters arising out of the Special Education Program of the Department of Education, pursuant to N.J.A.C. 6A:14. Any aspect of notice and hearing not covered by these special hearing rules shall be governed by the Uniform Administrative Procedure Rules (U.A.P.R.) contained in N.J.A.C. 1:1. To the extent that these rules are inconsistent with the U.A.P.R., these rules shall apply.

(b) These rules are established in implementation of Federal law, at 20 U.S.C.A. 1415 et seq. and 34 CFR 300 et seq. These rules do not duplicate each provision of Federal law, but highlight some of the key Federal provisions which form the source or authority for these rules. Where appropriate, the Federal source or authority for a rule or Federal elaboration of a rule will be indicated in brackets following the rule. In any case where these rules could be construed as conflicting with Federal requirements, the Federal requirements shall apply.

(c) Since these rules are established in implementation of Federal law, they may not be relaxed except as specifically provided herein or pursuant to Federal law.

History

• Amended by R.2005 d.261, effective 8/15/2005.
• See: 37 N.J.R. 559(a), 37 N.J.R. 3033(a).
• In (a), substituted "6A:14" for "6:28".

Subchapter 3 COMMENCEMENT OF CASE

N.J. Admin. Code § 1:6A-3.1 Commencement of case

Upon unsuccessful conclusion of the resolution process or mediation, as provided in N.J.A.C. 6A:14-2.7, the Office of Special Education Programs shall immediately transmit the matter with the transmittal form to the Office of Administrative Law. Copies of the transmittal form shall be sent to the parties.

Subchapter 4 AGENCY RESPONSIBILITY BEFORE TRANSMISSION TO THE OFFICE OF ADMINISTRATIVE LAW

N.J. Admin. Code § 1:6A-4.1 Ongoing settlement efforts

(a) The scheduling of a hearing shall not preclude voluntary ongoing efforts by the parties to settle the matter before or at the hearing.

(b) Any request for an adjournment based upon on-going settlement efforts by the parties shall comply with the requirements of N.J.A.C. 1:6A-9.2.

History

• The following annotations apply to N.J.A.C. 1:6A-4.1 prior to its repeal by R.2010 d.275:
• Amended by R.1990 d.405, effective 8/6/1990.
• See: 22 N.J.R. 1295(a), 22 N.J.R. 2262(b).
• In (f): Added language specifying that parents shall provide the Department with a telephone number for contact.
• Recodified from N.J.A.C. 1:6A-4.2 and amended by R.2000 d.94, effective 3/6/2000.
• See: 31 N.J.R. 3875(a), 32 N.J.R. 785(a).
• Rewrote the section. Former N.J.A.C. 1:6A-4.1, Notice of available legal service, repealed.
• Amended by R.2005 d.261, effective 8/15/2005.
• See: 37 N.J.R. 559(a), 37 N.J.R. 3033(a).
• In (a), substituted "offer mediation" for "determine whether mediation is requested" in the introductory paragraph and rewrote 2; rewrote (c) and (d).
• The following annotation applies to N.J.A.C. 1:6A-4.1 subsequent to its recodification from N.J.A.C. 1:6A-4.3 by R.2010 d.275:
• Recodified from N.J.A.C. 1:6A-4.3 and amended by R.2010 d.275, effective 12/6/2010.
• See: 42 N.J.R. 1763(a), 42 N.J.R. 2951(a).
• Rewrote (b). Former N.J.A.C. 1:6A-4.1, Mediation by the Department of Education, repealed.

N.J. Admin. Code § 1:6A-4.2 Reserved

History

• Recodified to N.J.A.C. 1:6A-4.1 by R.2000 d.94, effective 3/6/2000.
• See: 31 New Jersey Register 3875(a), 32 New Jersey Register 785(a).

N.J. Admin. Code § 1:6A-4.3 Reserved

History

• Recodified to N.J.A.C. 1:6A-4.1 by R.2010 d.275, effective 12/6/2010.
• See: 42 N.J.R. 1763(a), 42 N.J.R. 2951(a).
• Section was "Ongoing settlement efforts".

Subchapter 5 REPRESENTATION

N.J. Admin. Code § 1:6A-5.1 Representation

(a) At a hearing, any party may be represented by legal counsel or accompanied and advised by individuals with special knowledge or training with respect to handicapped pupils and their educational needs, or both. Parents and children may be represented by individuals with special knowledge or training with respect to handicapped pupils and their educational needs.

(b) A non-lawyer seeking to represent a party shall comply with the application process contained in N.J.A.C. 1:1-5.4 and shall be bound by the approval procedures, limitations and practice requirements contained in N.J.A.C. 1:1-5.5.

History

• Amended by R.1995, d.176, effective 3/20/1995.
• See: 27 New Jersey Register 4(a), 27 New Jersey Register 1179(a).

Subchapter 9 SCHEDULING

N.J. Admin. Code § 1:6A-9.1 Scheduling of hearing by Office of Administrative Law

(a) Upon unsuccessful conclusion of the resolution process or mediation, as provided in N.J.A.C. 6A:14-2.7, the representative of the Office of Special Education Programs shall immediately contact the Clerk of the Office of Administrative Law and the Clerk shall assign a peremptory hearing date. The hearing date shall, to the greatest extent possible, be convenient to all parties but shall be approximately 10 days from the date of the scheduling call.

(b) The Office of Special Education Programs shall immediately transmit the matter to the Office of Administrative Law with the transmittal form. Copies of any motions or other documents shall be filed subsequently with the assigned judge.

History

• Amended by R.1990 d.405, effective 8/6/1990.
• See: 22 N.J.R. 1295(a), 22 N.J.R. 2262(b).
• Revised section into subsections (a) and (b).
• Deleted "agreed upon by all parties" referring to later date scheduling.
• Added sentence; "If the parents ... by the clerk."
• Amended by R.2000 d.94, effective 3/6/2000.
• See: 31 N.J.R. 3875(a), 32 N.J.R. 785(a).
• Rewrote (a); and in (b), substituted a reference to scheduling calls for a reference to conferences.
• Amended by R.2005 d.261, effective 8/15/2005.
• See: 37 N.J.R. 559(a), 37 N.J.R. 3033(a).
• Rewrote the section.
• Amended by R.2010 d.275, effective 12/6/2010.
• See: 42 N.J.R. 1763(a), 42 N.J.R. 2951(a).
• In (a), substituted "Upon unsuccessful conclusion of the resolution process or mediation, as provided in N.J.A.C. 6A:14-2.7" for "At the conclusion of an unsuccessful mediation conference or when mediation is not scheduled" and "immediately contact" for "telephone".

N.J. Admin. Code § 1:6A-9.2 Adjournments

(a) The judge may grant an adjournment of the hearing at the request of either party. Any adjournment shall be for a specific period of time. When an adjournment is granted, the deadline for decision will be extended by an amount of time equal to the adjournment.

(b) No adjournment or delay in the scheduling of the hearing shall occur except at the request of a party.

History

• New Rule, R.1992 d.331, effective 9/8/1992.
• See: 24 N.J.R. 1936(a), 24 N.J.R. 3091(a).
• Amended by R.2000 d.94, effective 3/6/2000.
• See: 31 N.J.R. 3875(a), 32 N.J.R. 785(a).
• In (a), inserted "of the hearing" following "adjournment".
• Amended by R.2005 d.261, effective 8/15/2005.
• See: 37 N.J.R. 559(a), 37 N.J.R. 3033(a).
• Added (c) and (d).
• Amended by R.2010 d.275, effective 12/6/2010.
• See: 42 N.J.R. 1763(a), 42 N.J.R. 2951(a).
• Deleted (c) and (d).

Subchapter 10 DISCOVERY

N.J. Admin. Code § 1:6A-10.1 Discovery

(a) All discovery shall be completed no later than five business days before the date of the hearing.

(b) Each party shall disclose to the other party any documentary evidence and summaries of testimony intended to be introduced at the hearing.

(c) Upon application of a party, the judge shall exclude any evidence at hearing that has not been disclosed to that party at least five business days before the hearing, unless the judge determines that the evidence could not reasonably have been disclosed within that time.

(d) Discovery shall, to the greatest extent possible, consist of the informal exchange of questions and answers and other information. Discovery may not include requests for formal interrogatories, formal admissions or depositions.

History

• Amended by R.2000 d.94, effective 3/6/2000.
• See: 31 N.J.R. 3875(a), 32 N.J.R. 785(a).
• Rewrote (a); and in (c), substituted a reference to business days for a reference to days.

Subchapter 12 MOTIONS

N.J. Admin. Code § 1:6A-12.1 Emergency relief pending settlement or decision

(a) As part of a hearing request, or at any time after a hearing is requested, the affected parent(s), guardian, board or public agency may apply in writing for emergency relief pending a settlement or decision on the matter. An emergency relief application shall set forth the specific relief sought and the specific circumstances which the applicant contends justifies under (e) below the relief sought. Each application shall be supported by an affidavit prepared by an affiant with personal knowledge of the facts contained therein and, if an expert's opinion is included, the affidavit shall specify the expert's qualifications.

(b) Prior to the transmittal of the hearing request to the Office of Administrative Law, applications for emergency relief shall be addressed to the State Director of the Office of Special Education Programs, with a copy to the other party. The Department shall forward to the Office of Administrative Law by the end of the next business day all emergency relief applications that meet the procedural requirements in (a) above and which set forth on the face of the application and affidavits circumstances which comply with the standards set forth in N.J.A.C. 6A:14-2.7(r). Emergency relief applications which fail to comply with the procedural requirements above or which do not comply with the standards set forth in N.J.A.C. 6A:14-2.7(r) shall be processed by the Department in accordance with N.J.A.C. 1:6A-9.1.

(c) After transmittal, applications for emergency relief must be made to the Office of Administrative Law, with a copy to the other party.

(d) The Office of Administrative Law shall schedule an emergency relief application hearing on the earliest date possible and shall notify all parties of this date. Except for extraordinary circumstances established by good cause, no adjournments shall be granted but the opponent to an emergency relief application may be heard by telephone on the date of the emergency relief hearing. If emergency relief is granted without all parties being heard, provision shall be made in the order for the absent parties to move for dissolution or modification on two days' notice. Such an order, granted without all parties being heard, may also provide for a continuation of the order up to 10 days.

(e) At the emergency relief hearing, the judge may allow the affidavits to be supplemented by testimony and/or oral argument. The judge may order emergency relief pending issuance of the decision in the matter or, for those issues specified in N.J.A.C. 1:6A-14.2(a), may order a change in the placement of a student to an interim alternative educational setting for not more than 45 days in accordance with 20 U.S.C. § 1415(k)(2), if the judge determines from the proofs that:

1. The petitioner will suffer irreparable harm if the requested relief is not granted;

2. The legal right underlying the petitioner's claim is settled;

3. The petitioner has a likelihood of prevailing on the merits of the underlying claim; and

4. When the equities and interests of the parties are balanced, the petitioner will suffer greater harm than the respondent will suffer if the requested relief is not granted.

(f) Judges may decide emergency relief applications orally on the record and may direct the prevailing party to prepare an order embodying the decision. If so directed, the prevailing party shall promptly mail the order to the judge and shall mail copies to every other party in the case. Unless a party notifies the judge and the prevailing party of his or her specific objections to the order within five days after such service, the judge may sign the order.

(g) After granting or denying the requested relief, the judge shall return the parties to the Department of Education for conclusion of the resolution process or mediation, as provided in N.J.A.C. 6A:14-2.7.

History

• Amended by R.2000 d.94, effective 3/6/2000.
• See: 31 N.J.R. 3875(a), 32 N.J.R. 785(a).
• In (a), substituted "State Director of the Office of Special Education Programs" for "Department of Education, attention Division of Special Education" in the first sentence; and rewrote (e) and (g).
• Amended by R.2005 d.261, effective 8/15/2005.
• See: 37 N.J.R. 559(a), 37 N.J.R. 3033(a).
• In (b) and (g), substituted "N.J.A.C. 1:6A-4.1" for "N.J.A.C. 1:6A-4.2".
• Amended by R.2010 d.275, effective 12/6/2010.
• See: 42 N.J.R. 1763(a), 42 N.J.R. 2951(a).
• In (b), substituted "comply with the standards set forth in N.J.A.C. 6A:14-2.7(r)" for "would justify emergency relief under this section", deleted "show no right to emergency relief or" preceding "fail", inserted "or which do not comply with the standards set forth in N.J.A.C. 6A:14-2.7(r)" and updated the N.J.A.C. reference; and rewrote (g).

Subchapter 13 PREHEARING CONFERENCES

N.J. Admin. Code § 1:6A-13.1 Prehearing conferences

Prehearing conferences may be scheduled in special education hearings.

History

• Amended by R.2005 d.261, effective 8/15/2005.
• See: 37 New Jersey Register 559(a), 37 New Jersey Register 3033(a).
• Substituted "may" for "shall not".

Subchapter 14 CONDUCT OF CASES

N.J. Admin. Code § 1:6A-14.1 Procedures for hearing

(a) To the greatest extent possible, the hearing shall be conducted at a time and place convenient to the parent(s) or guardian.

(b) At the hearing, parents shall have the right to open the hearing to the public, and to have the child who is the subject of the hearing present.

(c) A verbatim record shall be made of the hearing.

(d) The judge's decision shall be based on the preponderance of the credible evidence, and the proposed action of the board of education or public agency shall not be accorded any presumption of correctness.

History

• Amended by R.1992 d.331, effective 9/8/1992.
• See: 24 N.J.R. 1936(a), 24 N.J.R. 3091(a).
• Deleted (c); redesignated (d)-(e) as (c)-(d).

N.J. Admin. Code § 1:6A-14.2 Expedited hearings

(a) An expedited hearing shall be scheduled:

1. At the request of a board of education or public agency if the board of education or public agency maintains that it is dangerous for the child to be in the current placement; or

2. At the request of a parent if:

i. The parent disagrees with the determination that the pupil's behavior in violating school rules was not a manifestation of the pupil's disability; or

ii. The parent disagrees with an order of school personnel removing a pupil with a disability from the pupil's current placement for more than 10 days or a series of removals that constitute a change in placement pursuant to 34 CFR 300.536 for a violation of school rules.

(b) Upon receipt of a request for an expedited hearing that meets the requirements of (a) above, the representative of the Department of Education shall contact the parties and the Clerk to:

1. Determine whether both parties request mediation;

2. If both parties request mediation, schedule the dates for the mediation and for the hearing; and

3. If mediation is not requested, schedule dates for the hearing.

(c) The hearing date for the expedited hearing shall be conducted within 20 school days of the hearing request.

(d) In an expedited hearing:

1. A written decision shall be issued by the judge and mailed by the Office of Administrative Law no later than 10 school days of the completion of the hearing.

(e) In an expedited hearing pursuant to (a)1 and 2ii above, the judge may:

1. Return the child with a disability to the placement from which the child was removed if the judge determines that the removal was a violation of 34 CFR 300.530 or that the child's behavior was a manifestation of the child's disability; or

2. Order a change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 calendar days if the judge determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.

(f) Placement in an interim alternative placement may not be longer than 45 calendar days. The procedures set forth in this section for such placement may be repeated as necessary.

History

• New Rule, R.2000 d.94, effective 3/6/2000.
• See: 31 N.J.R. 3875(a), 32 N.J.R. 785(a).
• Former N.J.A.C. 1:6A-14.2, Interpreters, recodified to N.J.A.C. 1:6A-14.3.
• Amended by R.2010 d.275, effective 12/6/2010.
• See: 42 N.J.R. 1763(a), 42 N.J.R. 2951(a).
• In (a)1, deleted "during the pendency of due process proceedings" following "placement"; in (a)2ii, substituted "300.536" for "300.519"; in the introductory paragraph of (b), substituted "contact" for ", through telephone conference call to" and "the Clerk to" for "to the Clerk"; in (c), substituted "conducted within 20 school days" for "no later than 10 days from the date", and deleted the last sentence; deleted former (d)1; recodified former (d)2 as (d)1; in (d)1, substituted "10 school days of the completion of the hearing" for "45 days from the date of the hearing request" and deleted the last sentence; in the introductory paragraph of (e), deleted "order placement of the pupil in an appropriate interim alternative educational setting if the judge" following "May"; deleted former (e)1, (e)2, (e)3, (e)4 and the former introductory paragraph of (f); recodified former (f)1 and (f)2 as (e)1 and (e)2; recodified former (g) as (f); and in (f), inserted "calendar".

N.J. Admin. Code § 1:6A-14.3 Interpreters

Where necessary, the judge may require the Department of Education to provide an interpreter at the hearing or written translation of the hearing, or both, at no cost to the parent(s) or guardian.

History

• Recodified from N.J.A.C. 1:6A-14.2 by R.2000 d.94, effective 3/6/2000.
• See: 31 New Jersey Register 3875(a), 32 New Jersey Register 785(a).
• Former N.J.A.C. 1:6A-14.3, Independent educational evaluation, recodified to N.J.A.C. 1:6A-14.4.

N.J. Admin. Code § 1:6A-14.4 Independent educational evaluation

(a) For good cause and after giving the parties an opportunity to be heard, the judge may order an independent educational evaluation of the pupil. The evaluation shall be conducted in accordance with N.J.A.C. 6A:14 by an appropriately certified or licensed professional examiner(s) who is not employed by the board of education or public agency responsible for the education of the pupil to be evaluated. The independent evaluator shall be chosen either by agreement of the parties or, where such agreement cannot be reached, by the judge after consultation with the parties. The judge shall order the board of education or public agency to pay for the independent educational evaluation at no cost to the parent(s) or guardian. (34 CFR 300.502)

(b) Where an independent educational evaluation is ordered, the judge upon the request of a party may adjourn the hearing for a specified period of time and the deadline for decision, as established in N.J.A.C. 1:6A-18.1, will be extended by an amount of time equal to the adjournment.

History

• Recodified from N.J.A.C. 1:6A-14.3 by R.2000 d.94, effective 3/6/2000.
• See: 31 N.J.R. 3875(a), 32 N.J.R. 785(a).
• Former N.J.A.C. 1:6A-14.4, Transcripts, recodified to N.J.A.C. 1:6A-14.5.
• Amended by R.2005 d.261, effective 8/15/2005.
• See: 37 N.J.R. 559(a), 37 N.J.R. 3033(a).
• In (a), substituted "6A:14" for "N.J.S.A. 6:28-1".
• Amended by R.2010 d.275, effective 12/6/2010.
• See: 42 N.J.R. 1763(a), 42 N.J.R. 2951(a).
• In (a), deleted "and does not routinely provide evaluations for" following "employed by", and substituted "CFR 300.502" for "C.F.R. 300.503".

N.J. Admin. Code § 1:6A-14.5 Transcripts

(a) In addition to any stenographic recording, each hearing shall be sound recorded. A parent may receive a copy of the sound recording at no cost by making a request to the Clerk.

(b) A parent may obtain a transcript of any hearing pursuant to 20 U.S.C. § 1415(h)(3) by contacting the Office of Special Education Programs. A board of education may arrange to obtain a transcript by contacting the Clerk.

History

• New Rule, R.1992 d.331, effective 9/8/1992.
• See: 24 N.J.R. 1936(a), 24 N.J.R. 3091(a).
• Recodified from N.J.A.C. 1:6A-14.4 and amended by R.2000 d.94, effective 3/6/2000.
• See: 31 N.J.R. 3875(a), 32 N.J.R. 785(a).
• Rewrote (b).
• Amended by R.2010 d.275, effective 12/6/2010.
• See: 42 N.J.R. 1763(a), 42 N.J.R. 2951(a).
• In (a), deleted "by tape recording" following "recorded", and substituted "sound" for "tape"; and in (b), substituted "A parent may obtain a transcript" for "Transcripts", deleted "may be obtained" following "hearing", and inserted the second sentence.

Subchapter 18 DECISION AND APPEAL

N.J. Admin. Code § 1:6A-18.1 Deadline for decision

Subject to any adjournments pursuant to N.J.A.C. 1:6A-9.2, a written decision shall be issued by the judge and mailed by the Office of Administrative Law no later than 45 days after the expiration of the 30-day period under 34 CFR 300.510(b), or the adjusted time periods described in 34 CFR 300.510(c).

History

• Amended by R.1992 d.331, effective 9/8/1992.
• See: 24 N.J.R. 1936(a), 24 N.J.R. 3091(a).
• Revised text.
• Amended by R.2010 d.275, effective 12/6/2010.
• See: 42 N.J.R. 1763(a), 42 N.J.R. 2951(a).
• Substituted "after the expiration of the 30-day period under 34 CFR 300.510(b), or the adjusted time periods described in 34 CFR 300.510(c)" for "from the date of the hearing request".

N.J. Admin. Code § 1:6A-18.2 Confidentiality

(a) In a written decision, the judge shall use initials rather than full names when referring to the child and the parent(s) or guardian, and may take other necessary and appropriate steps, in order to preserve their interest in privacy.

(b) Records of special education hearings shall be maintained in confidence pursuant to Federal regulations, 34 CFR 300.610, at the Office of Special Education Programs.

History

• Amended by R.2000 d.94, effective 3/6/2000.
• See: 31 N.J.R. 3875(a), 32 N.J.R. 785(a).
• Rewrote (b).
• Amended by R.2010 d.275, effective 12/6/2010.
• See: 42 N.J.R. 1763(a), 42 N.J.R. 2951(a).
• In (b), substituted "300.610," for "300.500 et seq.".
• Petition for Rulemaking.
• See: 47 N.J.R. 1350(a), 2004(a), 2676(a).

N.J. Admin. Code § 1:6A-18.3 Appeal, use of hearing record, obtaining copy of record, and contents of record

Any party may appeal the decision of the judge either to the Superior Court of New Jersey, pursuant to the Rules Governing the Courts of the State of New Jersey, or to a district court of the United States, pursuant to 20 U.S.C. § 1415(i)(2).

History

• Administrative correction: 20 U.S.C.A. 1415(e)(3) changed to 20 U.S.C.A. 1415(e)(2).
• See: 22 N.J.R. 3478(a).
• Amended by R.1992 d.331, effective 9/8/1992.
• See: 24 N.J.R. 1936(a), 24 N.J.R. 3091(a).
• Revised (b).
• Amended by R.2000 d.94, effective 3/6/2000.
• See: 31 N.J.R. 3875(a), 32 N.J.R. 785(a).
• In (b), substituted references to the Office of Special Education Programs for references to the Office of Administrative Law throughout.
• Administrative correction.
• See: 33 N.J.R. 1209(a).
• Amended by R.2010 d.275, effective 12/6/2010.
• See: 42 N.J.R. 1763(a), 42 N.J.R. 2951(a).
• Deleted designation (a); deleted "A." following "U.S.C."; and deleted (b) and (c).

N.J. Admin. Code § 1:6A-18.4 Stay of implementation

Unless the parties otherwise agree or the judge orders pursuant to N.J.A.C. 1:6A-12.1 or 14.2, the educational placement of the pupil shall not be changed prior to the issuance of the decision in the case, pursuant to 34 CFR 300.514.

History

• Amended by R.2000 d.94, effective 3/6/2000.
• See: 31 N.J.R. 3875(a), 32 N.J.R. 785(a).
• In (a), inserted "or the judge orders pursuant to N.J.A.C. 1:6A-12.1 or 14.2" following "agree".
• Amended by R.2005 d.261, effective 8/15/2005.
• See: 37 N.J.R. 559(a), 37 N.J.R. 3033(a).
• In (a), substituted "300.514" for "300.513".
• Amended by R.2010 d.275, effective 12/6/2010.
• See: 42 N.J.R. 1763(a), 42 N.J.R. 2951(a).
• Deleted designation (a); substituted "CFR" for "C.F.R."; and deleted (b).

N.J. Admin. Code § 1:6A-18.5 Reserved

History

• Repealed by R.1992 d.331, effective 9/8/1992.
• See: 24 New Jersey Register 1936(a), 24 New Jersey Register 3091(a).
• Section was "Motion to reopen hearing".

Chapter 10 FAMILY DEVELOPMENT HEARINGS

Subchapter 1 APPLICABILITY

N.J. Admin. Code § 1:10-1.1 Applicability

(a) The rules in this chapter shall apply to matters transmitted to the Office of Administrative Law by the Division of Family Development (DFD) where an applicant or recipient disputes the proposed action on eligibility or benefits entitlement by a county welfare agency (CWA) or a local decision or inaction by a municipal welfare department (MWD). These rules also apply to food stamp intentional program violations. Any aspect of the hearing not covered by these special hearing rules shall be governed by the Uniform Administrative Procedure Rules (U.A.P.R.) contained in N.J.A.C. 1:1. To the extent that these rules are inconsistent with the U.A.P.R., these rules shall apply.

(b) These rules are established in implementation of Federal law, 7 C.F.R. 273.16; 45 C.F.R. § 205.10; 7 C.F.R. § 273.15. In any case where these rules can be construed as conflicting with Federal requirements, the Federal requirements shall apply. Since these rules are established in implementation of Federal law, they may not be relaxed except as specifically provided pursuant to Federal law.

History

• Administrative Correction.
• See: 21 New Jersey Register 2288(a).
• Amended by R.1994 d.417, effective 8/15/1994.
• See: 26 New Jersey Register 1774(b), 26 New Jersey Register 3441(a).

Subchapter 5 REPRESENTATION

N.J. Admin. Code § 1:10-5.1 Representation at hearing

An applicant or recipient may appear at a proceeding without legal representation or may be represented by an attorney or by a relative, friend or other spokesperson pursuant to the procedures set forth in N.J.A.C. 1:1-5.4; 7 C.F.R. 273.15(f); 45 C.F.R. 205.10(a)(3)(iii); and 7 C.F.R. 273.15(p)(2).

History

• Amended by47 N.J.R. 1310(a), Effective 6/15/2015

Subchapter 9 SCHEDULING; CLERK'S NOTICES; ADJOURNMENTS

N.J. Admin. Code § 1:10-9.1 Adjournments

(a) In cases involving food stamp benefits, upon timely application an applicant/recipient shall receive one adjournment of the scheduled hearing date.

1. In cases involving an alleged intentional program violation, the applicant/recipient must request the adjournment at least 10 days before the scheduled hearing date and the hearing shall not be postponed for more than a total of 30 days. 7 CFR 273.16.

(b) In all other cases, upon timely application and for good cause shown, an applicant/recipient may receive one adjournment of the scheduled hearing date for a period of no more than 30 days.

History

• Amended by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• In (a), deleted "for a period of no more than 30 days" from the end; added (a)1; and deleted (c) and (d).

N.J. Admin. Code § 1:10-9.2 Notice of hearing

(a) In cases involving Temporary Aid to Needy Families (TANF) or food stamp benefits, except for emergency hearings, the Clerk shall send written notice of the filing and hearing to each party at least 10 days before the scheduled hearing date.

1. The notice may be sent less than 10 days before the hearing date if the applicant or recipient so requests in order to expedite the hearing.

(b) In cases involving an alleged intentional program violation, written notice of the scheduled hearing shall be sent to the applicant/recipient at least 30 days prior to the hearing. 7 C.F.R. 273.16(e)(3).

History

• Amended by47 N.J.R. 1310(a), Effective 6/15/2015

N.J. Admin. Code § 1:10-9.3 Scheduling of hearing

(a) The hearing shall be held at a time, date and location convenient to the applicant or recipient.

(b) Upon presentation of acceptable information regarding an applicant's or recipient's illness or infirmity which would prevent his or her appearance at a hearing location, the hearing shall be scheduled at the applicant/recipient's residence.

Subchapter 10 DISCOVERY

N.J. Admin. Code § 1:10-10.1 Discovery

(a) The CWA or MWD shall provide the applicant or recipient or his or her authorized representative opportunity to review the entire case file and all documents and records to be used in the hearing. (7 C.F.R. 273.15(i)(1); 45 C.F.R. 205.10(a)(13)(i).)

(b) Any other discovery shall be by motion to the judge and for good cause shown. In no case shall the hearing date be adjourned to permit discovery under this subsection.

History

• Amended by47 N.J.R. 1310(a), Effective 6/15/2015

Subchapter 12 CONTINUED ELIGIBILITY; EMERGENCY FAIR HEARINGS

N.J. Admin. Code § 1:10-12.1 Reserved

History

• Repealed by R.2003 d.377, effective 10/6/2003.
• See: 35 New Jersey Register 2549(a), 35 New Jersey Register 4711(a).
• Section was "Eligibility for continued benefits in AFDC and food stamp cases".

N.J. Admin. Code § 1:10-12.2 Emergency fair hearings in TANF or General Assistance cases

(a) When DFD determines that a request for hearing should be scheduled as an emergency fair hearing:

1. DFD shall notify the Office of Administrative Law of the hearing request on the same day as the request is received.

2. The case shall be scheduled by the Office of Administrative Law for a hearing within three days after notification of the hearing request is received.

3. Notice of the time, date, and place of the hearing shall be transmitted to DFD within one day after the Office of Administrative Law is notified of the hearing request. DFD shall prepare the OAL transmittal form and notify the CWA or MWD, the petitioning applicant/recipient, or the petitioner's representative of the scheduled hearing on the day that it receives notification of the hearing time and place.

4. The judge shall issue an initial decision no later than the day following the date of the hearing. A copy of the decision shall be transmitted to the Director of the DFD and the parties by an expeditious method designed to ensure receipt no later than the day following the date of the decision.

5. The petitioning applicant/recipient, his or her representative or the CWA or MWD may, by telephone, make exception or objection to the initial decision, to the DFD no later than the first day following the issuance of the initial decision.

6. The Director of the DFD shall issue a final decision no later than three days following the date the initial decision is received which shall accept, reject or modify the initial decision. On the date the final decision is issued, the DFD shall notify the CWA or MWD, the Office of Administrative Law and the petitioner or the petitioner's representative of the final decision and any relief ordered shall be provided on the date notice of the decision is received.

History

• Amended by47 N.J.R. 1310(a), Effective 6/15/2015

Subchapter 14 CONDUCT OF CASES

N.J. Admin. Code § 1:10-14.1 Attendance at hearing

(a) The applicant/recipient or a representative and the CWA or MWD and their representatives, if any, shall attend the hearing.

(b) The hearing may also be attended by other persons having an interest in the matter if permitted by the applicant or recipient.

(c) The judge may limit the number of persons in attendance at the hearing to comport with any hearing room space limitations.

(d) If neither the applicant/recipient nor a representative appears at a hearing concerning an alleged intentional program violation and timely adequate notice of the hearing was given to the applicant/recipient, the hearing shall be conducted ex parte. 7 C.F.R. 273.16(e); N.J.A.C. 10:87-11.5(a)4i.

History

• Amended by47 N.J.R. 1310(a), Effective 6/15/2015

N.J. Admin. Code § 1:10-14.2 Intentional program violation hearings

At an intentional program violation hearing, the charged applicant/recipient has a right to remain silent and may refuse to answer questions. 7 C.F.R. 273.16(e)(2)(iii).

History

• Amended by47 N.J.R. 1310(a), Effective 6/15/2015

N.J. Admin. Code § 1:10-14.3 Independent medical assessment

For good cause, the administrative law judge may order an independent medical assessment or professional evaluation when the hearing involves medical issues. Such medical assessment shall be obtained at CWA or MWD expense. 7 C.F.R. 273.15(m)(2)(v);7 C.F.R. 273.16(e)(2)(ii); 45 C.F.R. 205.10(a)(1)(iii)(10).

History

• Amended by47 N.J.R. 1310(a), Effective 6/15/2015

Subchapter 18 DECISIONS

N.J. Admin. Code § 1:10-18.1 Initial decision (other than emergency hearing matters)

(a) In cases involving TANF benefits, an initial decision shall be issued within 21 days from the date of the hearing.

(b) In cases involving food stamp benefits and temporary rental assistance, an initial decision shall be issued within 14 days from the date of the hearing.

(c) In cases involving food stamp intentional program violations, an initial decision shall be issued within 21 days from the date of the hearing.

(d) In cases involving General Assistance, an initial decision shall be issued within 21 days from the date of the hearing.

History

• Amended by47 N.J.R. 1310(a), Effective 6/15/2015

N.J. Admin. Code § 1:10-18.2 Exceptions

If the parties wish to take exception to the initial decision, such exception must be submitted in written form to the Director of the DFD. Copies of the exception shall be served on all other parties and the judge. The exceptions must be received by the DFD no later than seven days after the date the initial decision was mailed to the parties. No replies or cross-exceptions shall be permitted.

History

• Administrative correction.
• See: 21 New Jersey Register 2288(a).
• Amended by R.1990 d.483, effective 9/17/1990.
• See: 22 New Jersey Register 2067(a), 22 New Jersey Register 3003(b).
• Change from five days to seven days after the date the initial decision was mailed to the parties in order to use regular mail.
• Amended by R.1991 d.44, effective 2/4/1991.
• See: 22 New Jersey Register 3278(b), 23 New Jersey Register 293(a).
• Deleted that exceptions shall be submitted to the Clerk; added text that "Copies of the exception shall be served on all other parties and the judge."

N.J. Admin. Code § 1:10-18.3 Written initial decisions

All initial decisions shall be issued in writing, pursuant to N.J.A.C. 1:1-18.3. Oral initial decisions are not permitted.

N.J. Admin. Code § 1:10-18.4 Extension of time limits

Time limits for filing an initial decision, filing exceptions, or issuing a final decision shall not be extended.

History

• New Rule, R.1997 d.158, effective 4/7/1997.
• See: 29 New Jersey Register 282(a), 29 New Jersey Register 1295(a).

Subchapter 19 SETTLEMENTS

N.J. Admin. Code § 1:10-19.1 Division of Family Development settlements

(a) The parties to a hearing may resolve a dispute, subsequent to transmittal of a matter to the Office of Administrative Law, by agreeing to settlement and withdrawal of the hearing request.

(b) Settlement prior to the scheduled hearing date shall not involve the administrative law judge. The DFD shall notify the Office of Administrative Law of any settlement and withdrawal so derived and the contested case shall be closed. The Office of Administrative Law shall immediately return the case file to DFD.

(c) If on the date of the scheduled hearing or at any time during the hearing the parties agree to settle the matter at issue, a "Stipulation of Settlement and Withdrawal" shall be executed by the parties. This document shall contain:

1. The reason for the hearing request;

The reason for settlement and terms of settlement; and

3. The effective date of eligibility and/or benefit entitlement resulting from settlement when appropriate.

(d) The execution of a Stipulation of Settlement and Withdrawal terminates the contested case. The Office of Administrative Law shall transmit the closed file to the Bureau of Administrative Review and Appeals (BARA), Division of Family Development within four days of the date of the scheduled hearing.

(e) A review of the settlement shall be completed and written notice shall be provided by BARA not later than three days after its receipt from the Office of Administrative Law. When approved, any terms or conditions of settlement shall be implemented within three days of the date notification of approval is received in the CWA or MWD. In the event settlement action is disapproved, the matter will be returned to the Office of Administrative Law within three days as a new case. The specific reason for returning the matter and applicable citation of law and regulations shall be clearly stated on the transmittal form.

(f) When implementation by the CWA or MWD is required in a settlement, a written report shall be sent by the CWA or MWD to the BARA within 30 days of the date the action was approved. Such report shall include the calculation of benefits in all cases involving a retroactive payment or a recalculation of benefit entitlement.

History

• Administrative correction to (b) and (d).
• See: 21 New Jersey Register 2288(a).

Chapter 10A DEPARTMENT OF CHILDREN AND FAMILIES HEARINGS

Subchapter 1 APPLICABILITY

N.J. Admin. Code § 1:10A-1.1 Applicability

The rules in this chapter shall apply to matters transmitted to the Office of Administrative Law by the Department of Children and Families (DCF) involving issues of child abuse or neglect. These rules also apply to any case transmitted to the Office of Administrative Law by another State agency which is consolidated with a DCF case involving issues of child abuse or neglect. Any aspect of the hearing not covered by the special hearing rules shall be governed by the Uniform Administrative Procedure Rules (UAPR) contained in N.J.A.C. 1:1. To the extent that these rules are inconsistent with the UAPR, these rules shall apply.

History

• Amended by R.2008 d.147, effective 6/16/2008.
• See: 40 N.J.R. 835(a), 40 N.J.R. 3619(a).
• Substituted "Department of Children and Families (DCF)" for "Division of Youth and Family Services (DYFS)" and "DCF" for "DYFS".

Subchapter 2 DEFINITIONS

N.J. Admin. Code § 1:10A-2.1 Definitions

The following words and terms when used in this chapter shall have the following meanings:

"Agency head" means an individual designated by the Commissioner of Children and Families with the authority in the capacity of final decision maker on cases transmitted by the DCF Office of Licensing, the DCF Institutional Abuse Investigations Unit, or the DCF Division of Child Protection and Permanency, as appropriate.

History

• Amended by 47 N.J.R. 2963(a), effective 12/7/2015

Subchapter 3 RIGHT TO COUNSEL IN CHILD ABUSE REGISTRY CASES

N.J. Admin. Code § 1:10A-3.1 Representation in Child Abuse Registry hearings

A party shall have the right to be represented by counsel in any matter at the Office of Administrative Law that has a potential outcome of placement on the Child Abuse Registry.

History

• Adopted by 52 N.J.R. 515(a), effective 3/16/2020

N.J. Admin. Code § 1:10A-3.2 Application and determination for assignment of court appointed counsel to indigent parties

(a) Any party who wants to apply for representation by a public defender shall complete an Office of Administrative Law (OAL) Application for Assignment of Counsel, incorporated herein by reference as N.J.A.C. 1:10A-3Ap pendix, and shall appear before an OAL Administrative Law Judge (ALJ), who will render an indigency determination.

(b) A determination of indigency under (a) above will be found if the applicant's gross household income is at or below the income amount for the applicant's household size, pursuant to the New Jersey Administrative Office of the Courts 2019 Income Eligibility Guidelines for Indigent Defense Services, which are incorporated herein by reference, as amended and supplemented, and available at http://www.njcourts.gov/courts/assets/municipal/indigencyguidelines.pdf

(c) The ALJ shall advise the applicant of his or her eligibility for a court-appointed attorney at the end of the hearing held pursuant to (a) above.

(d) If an applicant is deemed eligible for a court-appointed attorney, after the hearing held pursuant to (a) above, then the OAL shall notify the Office of the Public Defender for such appointment. The appointed public defender shall file an appearance with the OAL no more than 10 days after being appointed to the case.

(e) If an applicant is deemed ineligible for a court-appointed attorney, then the ALJ shall advise the applicant that his or her matter will be assigned by the OAL to an ALJ for an evidentiary hearing.

(f) Representation of the party by a public defender appointed pursuant to this section shall continue through the filing of exceptions to the OAL decision and any appeal of the Department of Children and Families Commissioner's final decision.

History

• Adopted by 52 N.J.R. 515(a), effective 3/16/2020

Subchapter 12 MOTIONS

N.J. Admin. Code § 1:10A-12.1 Motion for access for records

(a) Any person or entity who is not a party to the contested case and who at any time prior to the issuance of the initial decision seeks access to the hearing, the record of the hearing, the initial decision, or other material protected by an order to seal issued pursuant to N.J.A.C. 1:10A-14.1 shall apply by motion to the administrative law judge.

(b) Motions for access to records shall be decided within 20 days from the date of submission.

(c) The order issued by the administrative law judge shall be submitted to the appropriate DCF agency head for review. The appropriate DCF agency head shall issue a final determination as to the issue of disclosure no later than 20 days from receipt of the order of the administrative law judge.

(d) Any person or entity who is not a party to the contested case and who at any time after issuance of the initial decision seeks access to the record of the hearing, the initial decision, or other material protected by an order to seal issued pursuant to N.J.A.C. 1:10A-14.1 shall apply by motion to the appropriate DCF agency head. The appropriate DCF agency head shall issue a final determination within 20 days of receipt of the motion.

History

• Amended by R.2008 d.147, effective 6/16/2008.
• See: 40 N.J.R. 835(a), 40 N.J.R. 3619(a).
• In (c) and (d), substituted "appropriate DCF agency head" for "Director of the Division of Youth and Family Services" throughout.

Subchapter 14 CONDUCT OF CASES

N.J. Admin. Code § 1:10A-14.1 Public hearing; records as public; sealing a record

(a) In any DCF matter involving allegations of child abuse or neglect which has not been consolidated with a case from another State agency, the judge shall immediately issue an order closing the hearing and sealing the record including all evidence, stenographic notes or audiotape and the initial decision.

(b) In any matter where in a DCF case involving allegations of child abuse and neglect has been consolidated with a case transmitted by another State agency, the judge shall issue an order closing the hearing and sealing the record of the case as necessary to protect all DCF records and reports regarding child abuse.

History

• Amended by R.2008 d.147, effective 6/16/2008.
• See: 40 N.J.R. 835(a), 40 N.J.R. 3619(a).
• In (a) and throughout (b), substituted "DCF" for "DYFS".

Subchapter 17 CONSOLIDATION OF TWO OR MORE CASES; MULTIPLE AGENCY JURISDICTION CLAIM; DETERMINATIONS OF PREDOMINANT INTEREST

N.J. Admin. Code § 1:10A-17.1 Consolidation and predominant interest

In any instance where a case instituted under the Tenure Employees Hearing Law, N.J.S.A. 18A:6-10 et seq., or a charge filed by the Department of Children and Families Office of Licensing is based upon a case concerning allegations of child abuse and neglect instituted by the Division of Child Protection and Permanency or by the Institutional Abuse Investigations Unit, an order consolidating the matters shall be issued, and the Division of Child Protection and Permanency or the Institutional Abuse Investigations Unit shall be deemed to have the predominant interest with regard to issues relating to the charges of child abuse and neglect.

History

• Amended by 47 N.J.R. 2963(a), effective 12/7/2015

N.J. Admin. Code § 1:10A-17.2 Predominant interest regarding confidentiality issues

In any instance where a DCF case involving allegations of child abuse and neglect has been consolidated with a case transmitted by another State agency, the DCF shall be deemed to have the predominant interest with regard to the issue of confidentiality of any records or reports of child abuse and neglect.

History

• Recodified from N.J.A.C. 1:10A-17.1 and amended by R.2008 d.147, effective 6/16/2008.
• See: 40 N.J.R. 835(a), 40 N.J.R. 3619(a).
• Substituted the first occurrence of "DCF" for "DYFS" and substituted the second occurrence of "DCF" for "Division of Youth and Family Services".

N.J. Admin. Code § 1:10A-17.3 Review of orders involving consolidation of cases from multiple agencies

In any instance where a DCF case involving allegations of child abuse and neglect has been consolidated with a case transmitted by another State agency pursuant to N.J.A.C. 1:10A-17.1, a party may file arguments opposing or supporting the consolidation and predominant interest order with the agency heads within five working days from receipt of the order.

History

• New Rule, R.2008 d.147, effective 6/16/2008.
• See: 40 N.J.R. 835(a), 40 N.J.R. 3619(a).

Chapter 10B DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES APPLICANT/RECIPIENT HEARINGS

Subchapter 1 HEARING APPLICABILITY

N.J. Admin. Code § 1:10B-1.1 Applicability

(a) The rules in this chapter shall apply to matters transmitted to the Office of Administrative Law by the Division of Medical Assistance and Health Services involving applicants for or recipients of Medicaid/NJ FamilyCare benefits or services.

(b) This chapter shall not apply to matters involving providers.

(c) Any aspect of the hearing not covered by these rules of special applicability shall be governed by the Uniform Administrative Procedure Rules (U.A.P.R.) contained in N.J.A.C. 1:

1. To the extent that this chapter is inconsistent with the U.A.P.R., this chapter shall apply.

History

• Amended by R.1991 d.500, effective 10/7/1991.
• See: 23 N.J.R. 2083(b), 23 N.J.R. 2998(b).
• Added citation to N.J.A.C. 10:6.
• Notice of readoption with technical change, effective 3/16/2020.
• See: 52 N.J.R. 516(a).

Subchapter 2 DEFINITIONS

N.J. Admin. Code § 1:10B-2.1 Definitions

The following terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

"Applicant" means any person who has made an application to become qualified to receive Medicaid/NJ FamilyCare benefits.

"Provider" means any person, public or private institution, agency, or business concern approved by the Division of Medical Assistance and Health Services that is lawfully providing medical care, services, goods and supplies, and holding, where applicable, a current valid license to provide such services or to dispense such goods or supplies.

"Recipient" means a New Jersey resident who has been determined to meet the applicable eligibility criteria for the Medicaid/NJ FamilyCare Program and is determined to need medical care and services authorized under the New Jersey Medical Assistance and Health Services Act.

History

• Notice of readoption with technical change, effective 3/16/2020.
• See: 52 N.J.R. 516(a).

Subchapter 5 REPRESENTATION

N.J. Admin. Code § 1:10B-5.1 Representation

An applicant/recipient may appear at a proceeding without representation or may be represented by an attorney or by a relative, friend, or other spokesperson pursuant to the procedures set forth at N.J.A.C. 1:1-5.4. See: 42 CFR 431.206(b)(3) and 42 CFR 435.923.

History

• Amended by R.1991 d.500, effective 10/7/1991.
• See: 23 N.J.R. 2083(b), 23 N.J.R. 2998(b).
• Notice of readoption with technical change, effective 3/16/2020.
• See: 52 N.J.R. 516(a).

Subchapter 9 CLERK'S NOTICE; SCHEDULING OF HEARING

N.J. Admin. Code § 1:10B-9.1 Clerk's notice

(a) The Clerk shall send a written notice of filing and hearing to each party at least 10 days before the scheduled hearing date.

(b) The notice pursuant to (a) above shall indicate that the applicant/recipient may represent him- or herself or use legal counsel, a relative, a friend, or other spokesperson as per the Federal Fair Hearing Regulations at 42 CFR 431.206(b)(3) and 42 CFR 435.923.

(c) The notice shall establish the hearing location, time, and date.

History

• Notice of readoption with technical change, effective 3/16/2020.
• See: 52 N.J.R. 516(a).

N.J. Admin. Code § 1:10B-9.2 Scheduling of hearing

(a) The hearing shall be conducted at a reasonable time, date, and place.

(b) Upon presentation of acceptable information regarding an applicant's/recipient's illness or infirmity that would prevent his or her appearance at a hearing location, the hearing shall be scheduled at the applicant's/recipient's current residence.

History

• Notice of readoption with technical change, effective 3/16/2020.
• See: 52 N.J.R. 516(a).

Subchapter 10 DISCOVERY

N.J. Admin. Code § 1:10B-10.1 Discovery

(a) The county welfare agency or the Division of Medical Assistance and Health Services shall provide the applicant/recipient, or his or her authorized representative, an opportunity to review the entire case file and all documents and records to be used in the hearing. The review shall occur at a reasonable time before the hearing, as well as during the hearing.

(b) If a party wants information other than what is provided in (a) above, the party must request permission from the judge. The judge may permit the additional discovery only if there is good cause. The judge may not delay the hearing to allow for additional discovery.

History

• Notice of readoption with technical change, effective 3/16/2020.
• See: 52 N.J.R. 516(a).

Subchapter 14 CONDUCT OF CASES

N.J. Admin. Code § 1:10B-14.1 Attendance at hearing

The applicant/recipient or a representative and the county welfare agency or the Division of Medical Assistance and Health Services and their representatives, if any, shall attend the hearing.

N.J. Admin. Code § 1:10B-14.2 Independent medical assessment

For good cause, the administrative law judge may order an independent medical assessment if the hearing involves medical issues such as those concerning a diagnosis, an examining physician's report, or a medical review team decision. Such medical assessment shall be at the expense of the county welfare agency or of the Division of Medical Assistance and Health Services and shall be part of the record.

History

• New Rule, R.2001 d.290, effective 8/20/2001.
• See: 33 N.J.R. 1980(a), 33 N.J.R. 2805(b).
• Notice of readoption with technical change, effective 3/16/2020.
• See: 52 N.J.R. 516(a).

Subchapter 18 DECISIONS

N.J. Admin. Code § 1:10B-18.1 Initial decision

An initial decision shall be issued within 21 days from the date of the hearing.

N.J. Admin. Code § 1:10B-18.2 Exceptions

(a) If the parties wish to take exception to the initial decision, such exception must be submitted in writing to the Director of the Division of Medical Assistance and Health Services. Copies of the exception shall be served on all other parties and the judge.

(b) Exceptions must be received by the Division of Medical Assistance and Health Services no later than seven days after the date the initial decision was mailed to the parties.

(c) No replies and cross-exceptions shall be permitted.

History

• Amended by R.1990 d.483, effective 9/17/1990.
• See: 22 New Jersey Register 2067(a), 22 New Jersey Register 3003(b).
• Amended by R.1991 d.44, effective 2/4/1991.
• See: 22 New Jersey Register 3278(b), 23 New Jersey Register 293(a).

N.J. Admin. Code § 1:10B-18.3 Written initial decisions

All initial decisions shall be issued in writing. Oral initial decisions are not permitted.

Chapter 11 INSURANCE FILING HEARINGS

Subchapter 1 APPLICABILITY

N.J. Admin. Code § 1:11-1.1 Applicability

The rules contained in this chapter shall apply to the notice and hearing of contested case matters involving the determination of a filing (as defined by N.J.A.C. 11:1-2.6) submitted by an insurer or a rating organization. Any aspect of notice or hearing not covered by these special hearing rules shall be governed by the Uniform Administrative Procedure Rules (U.A.P.R.) contained in N.J.A.C. 1:1. To the extent that these rules are inconsistent with the U.A.P.R., these rules shall apply.

Subchapter 15 EVIDENCE

N.J. Admin. Code § 1:11-15.1 Evidence

(a) At least 10 days prior to the commencement of the hearing or 10 days prior to the date on which an expert witness is scheduled to testify, the parties shall exchange, and shall file with the judge, written testimony for each individual that the party intends to call as an expert witness. The written testimony shall include the name, address, title, credentials and area of expertise of the witness and the nature and substance of his or her testimony.

(b) At the same time that the written testimony is exchanged, the parties shall also exchange all supporting data, calculations, work sheets and similar materials used by the expert witness in developing the written testimony. This supporting data shall not be filed with the judge. If the data has been previously distributed to the parties, through discovery or otherwise, the data need not be exchanged at this time.

(c) All written testimony which meets the requirements of N.J.A.C. 1:1-15.1 et seq. shall be admissible. Parties may object to the admissibility of the written testimony at the evidentiary hearing. When the prefiled testimony of a witness is admitted into evidence, the witness shall be made available and subject to cross-examination.

(d) Upon application of a party, the judge may exclude, in whole or in part, the testimony of a witness for failure to comply with the requirements of this section.

Chapter 12 UNEMPLOYMENT BENEFIT, STATE PLAN TEMPORARY DISABILITY AND STATE PLAN FAMILY LEAVE INSURANCE CASES

Subchapter 1 HEARING APPLICABILITY

N.J. Admin. Code § 1:12-1.1 Applicability

The rules in this chapter shall apply to unemployment benefit cases, State plan temporary disability hearings, and State plan family leave insurance hearings, under N.J.S.A. 43:21-50(b), heard by the Board of Review or the appeal tribunals of the Department of Labor and Workforce Development pursuant to N.J.S.A. 43:21-1 (see also N.J.A.C. 12:20). Private plan temporary disability and private plan family leave insurance cases heard by hearing officers of the Department of Labor and Workforce Development pursuant to N.J.S.A. 43:21-50(a) shall be conducted in accordance with N.J.A.C. 1:12A.

History

• Administrative change.
• See: 37 N.J.R. 1511(a).
• Amended by R.2011 d.204, effective 8/1/2011.
• See: 42 N.J.R. 2170(a), 43 N.J.R. 1861(a).
• Substituted a comma for "and" following the first occurrence of "cases", inserted "hearings, and State plan family leave insurance", inserted a comma preceding "under" and preceding the first occurrence of "heard", and inserted "and private plan family leave insurance" and "and Workforce Development".

Subchapter 2 DEFINITIONS

N.J. Admin. Code § 1:12-2.1 Definitions

The following words and terms, as used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

"Appeal tribunal" means the entity which conducts hearings and renders decisions concerning employer and employee appeals of decisions for unemployment, State plan temporary disability and State plan family leave insurance benefits made at the local office level. In so doing, the appeal tribunal acts as agency head.

"Appellate body" means either the appeal tribunal, Board of Review or hearing officer which is conducting the proceeding.

"Board of Review" means the entity which conducts appeals of unemployment benefit determinations and State plan temporary disability and State plan family leave insurance claim determinations made by an appeal tribunal. In so doing, the Board of Review acts as agency head.

History

• Amended by R.1999 d.291, effective 9/7/1999.
• See: 31 N.J.R. 1550(a), 31 N.J.R. 2603(a).
• Deleted "Division".
• Amended by R.2011 d.204, effective 8/1/2011.
• See: 42 N.J.R. 2170(a), 43 N.J.R. 1861(a).
• In definition "Appeal tribunal", inserted ", State plan temporary disability and State plan family leave insurance"; and in definition "Board of Review", inserted "and State plan family leave insurance".

Subchapter 5 REPRESENTATION

N.J. Admin. Code § 1:12-5.1 Representation

(a) A party may represent himself or herself or may be represented by an attorney or a non-lawyer representative pursuant to R. N.J.A.C. 1:21-1(f)(11). Representation by an attorney shall be at the party's expense. Representation by a non-lawyer representative shall comply with N.J.A.C. 1:1-5.4.

(b) In any unemployment benefits proceeding and in any State plan temporary disability and State plan family leave insurance claim proceeding of an appeal before an appeal tribunal or the Board of Review, all fees for attorneys representing claimants shall be approved by the Board of Review after it receives submission of an authorization form and a copy of the applicable decision.

(c) The amount of fees approved for persons representing claimants shall be discretionary with the Board of Review. In determining the amount of fees, the Board of Review shall at least consider the following factors:

1. The amount of time spent on the case;

2. The complexity of the case;

3. The services performed as noted on the authorization form or any other documentation to the Board of Review; and

4. The results achieved (that is, favorable or unfavorable).

(d) The Board of Review or any appeal tribunal, in its discretion, may refuse to allow to appear before it any person who engages in misconduct at a hearing or who intentionally or repeatedly fails to observe the provisions of the Unemployment Compensation Law of New Jersey, the rules and regulations of either the Division of Unemployment Insurance or the Division of Temporary Disability Insurance, or the rules of the Board of Review.

History

• Amended by R.2005 d.107, effective 4/4/2005.
• See: 36 N.J.R. 3957(a), 37 N.J.R. 1015(b).
• Rewrote the section.
• Amended by R.2011 d.204, effective 8/1/2011.
• See: 42 N.J.R. 2170(a), 43 N.J.R. 1861(a).
• In (b), inserted "and State plan family leave insurance"; and in (d), substituted "either the Division of Unemployment Insurance or the Division of Temporary Disability Insurance" for "the division".

Subchapter 9 SCHEDULING

N.J. Admin. Code § 1:12-9.1 Notice of hearing

(a) Written notices of the time and place of any in-person or telephone hearing shall be mailed to the parties in interest at least five days before the date of hearing but a shorter notice may be given if not prejudicial to the parties.

(b) The notice of hearing shall contain at least the following information:

1. That the parties have a right to object to an in-person or telephone hearing, whichever is scheduled; and

2. Written instructions as to how the hearing shall be conducted.

History

• Amended by R.2005 d.107, effective 4/4/2005.
• See: 36 New Jersey Register 3957(a), 37 New Jersey Register 1015(b).
• Rewrote the section.

N.J. Admin. Code § 1:12-9.2 Adjournments

(a) Adjournments shall be granted only in exceptional situations which could not have been reasonably foreseen or prevented.

(b) Requests for adjournment of hearings scheduled before the appeal tribunal shall be made to the appeal tribunal which shall use its best judgment as to when adjournments of hearings shall be granted in order to secure all facts that are necessary and to be fair to the parties.

(c) Applications and requests for adjournment of hearings scheduled before the Board of Review shall be made at least 24 hours before the date of the scheduled hearing and shall be granted at the discretion of the Board of Review.

(d) All parties to an adjournment shall be responsible for giving prompt notice to their witnesses as to the adjournment.

History

• Recodified from N.J.A.C. 1:12-9.3 by R.2005 d.107, effective 4/4/2005.
• See: 36 New Jersey Register 3957(a), 37 New Jersey Register 1015(b).
• Former N.J.A.C. 1:12-9.2, Notice of telephone hearing, repealed.

N.J. Admin. Code § 1:12-9.3 Reserved

History

• Recodified to N.J.A.C. 1:12-9.2 by R.2005 d.107, effective 4/4/2005.
• See: 36 New Jersey Register 3957(a), 37 New Jersey Register 1015(b).
• Section was "Adjournments".

Subchapter 10 DISCOVERY

N.J. Admin. Code § 1:12-10.1 Inspection of Division files

(a) In cases involving unemployment compensation benefit appeals and State plan temporary disability or State plan family leave insurance claim appeals, requests for the production or inspection of the records of either the Division of Unemployment Insurance or the Division of Temporary Disability Insurance shall be addressed to the Board of Review.

(b) A request for the production or inspection of the records of either the Division of Unemployment Insurance or the Division of Temporary Disability Insurance shall be in writing and shall clearly state the nature of the information required and the reason therefor.

(c) Orders for the production or inspection of the records of either the Division of Unemployment Insurance or the Division of Temporary Disability Insurance may be issued in any proceeding to the extent necessary for the proper presentation of the case.

(d) In all cases where an application to supply a party or his or her representative with information from the records of either the Division of Unemployment Insurance or the Division of Temporary Disability Insurance is granted, the party shall be furnished with a copy of such information.

(e) Individuals may be assessed reasonable administrative costs for the copying of records and any other costs for obtaining information from the Board of Review.

(f) Following an appeal to the Appellate Division and upon direction of the Attorney General's office, the transcript of any proceeding which has been sound recorded shall be provided to all parties by the Board. Any request by an employer shall be accompanied by a reasonable security deposit not to exceed either the estimated cost of the transcript as determined by the Board or $ 300.00 for each day or fraction thereof of the proceeding, the deposit to be made payable to the Board. The Board shall bill the employer for any amount due for the preparation of the transcript and any hard copies or shall reimburse the employer for any overpayment.

(g) To obtain a copy of a sound recording of any proceeding, the requesting party must file a request with the executive secretary of the Board. Such a request is subject to approval by the Board. The requesting party shall notify all other parties of such a request. The request shall be accompanied by a reasonable payment of costs in the amount of $ 15.00 for the initial copy of the sound recording and $ 10.00 for any subsequent copy.

(h) No claimant shall be charged any fee of any kind in any proceeding under the Unemployment Compensation Law by the Board of Review.

(i) No disclosure of information, obtained at any time from, and identifiable to, specific workers, employers or other persons for the proper administration of an appeal, shall be made directly or indirectly except as authorized by the Board of Review in accordance with N.J.A.C. 12:15-2.

History

• Amended by R.1999 d.291, effective 9/7/1999.
• See: 31 N.J.R. 1550(a), 31 N.J.R. 2603(a).
• In (a) through (d), substituted references to the Division of Unemployment Insurance and the Division of Temporary Disability Insurance for references to the Division; and in (i), changed N.J.A.C. reference.
• Amended by R.2011 d.204, effective 8/1/2011.
• See: 42 N.J.R. 2170(a), 43 N.J.R. 1861(a).
• In (a), inserted "or State plan family leave insurance".

Subchapter 11 SUBPOENAS

N.J. Admin. Code § 1:12-11.1 Subpoenas

Subpoenas to compel the attendance of witnesses and the production of records for any hearing on an appeal may be directed to be issued by a member of the Board of Review in cases appealed to the Board of Review, or by the appeal tribunal, in cases appealed to an appeal tribunal, only upon the showing of the necessity therefor by the party applying for the issuance for such subpoena.

N.J. Admin. Code § 1:12-11.2 Witness fees

(a) Witness fees at the rate of $ 1.00 for each day of attendance upon a hearing in response to a subpoena ad testificandum and mileage at the rate of $ 0.25 per mile from the residence of the witness to the place of hearing and return, shall be allowed and paid upon presentation of a voucher signed by the witness and properly certified by a member of the appellate body before whom the witness appeared.

(b) Witness fees at the rate of $ 2.00 for each day of attendance upon a hearing in response to a subpoena duces tecum and mileage at the rate of $ 0.25 per mile from the residence of the witness to the place of hearing and return, shall be allowed and paid upon the presentation of a voucher signed by the witness and properly certified by a member of the appellate body before whom the witness appeared.

Subchapter 14 CONDUCT OF CASES

N.J. Admin. Code § 1:12-14.1 Public hearings

Hearings shall, in the absence of a showing of sufficient cause for a closed hearing, be open to the public.

N.J. Admin. Code § 1:12-14.2 Conduct of hearing

(a) The proceedings shall be fair and impartial and shall be conducted in such manner as may be best suited to determine the parties' rights.

(b) The appellate body shall open the hearing by ascertaining and summarizing the issue or issues involved in the appeal. The parties, their attorneys or representatives may examine or cross-examine witnesses, inspect documents, and explain or rebut any evidence. An opportunity to present argument shall be afforded the parties, which argument shall be made part of the record. Where a party is not represented, the appellate body shall give every assistance that does not interfere with the impartial discharge of its official duties. The appellate body may examine each party or witness to such extent as it deems necessary. All oral testimony shall be under oath or affirmation and shall be recorded.

(c) The appellate body may take such additional evidence as it deems necessary; provided, that in case such further evidence is taken, the parties shall be given proper notice of the time and place of such further hearing.

(d) The appellate body, in its discretion, may refuse to allow to appear before it any person who engages in misconduct at a hearing or who intentionally or repeatedly fails to observe the provisions of the Unemployment Compensation Law of New Jersey or the rules and regulations of either the Division of Unemployment Insurance or the Division of Temporary Disability Insurance.

History

• Amended by R.1999 d.291, effective 9/7/1999.
• See: 31 New Jersey Register 1550(a), 31 New Jersey Register 2603(a).
• In (d), substituted a reference to the Division of Unemployment Insurance and the Division of Temporary Disability Insurance for a reference to the Division.

N.J. Admin. Code § 1:12-14.3 Appeals hearings

(a) All appeals to the Board of Review may be heard upon the evidence in the record made before the appeal tribunal, or the Board of Review may direct the taking of additional evidence before it.

(b) In the hearing of an appeal on the record, the Board of Review may limit the parties to oral argument or the filing of written argument, or both. If, in the discretion of the Board of Review, additional evidence is necessary to enable it to determine the appeal, the parties shall be notified by the Board of Review of the time and place such evidence will be taken. Any party to any proceeding in which testimony is taken may present such evidence as may be pertinent to the issue.

(c) The Board of Review, in its discretion, may remand any claim or any issue involved in a claim to an appeal tribunal for the taking of such additional evidence as the Board of Review may deem necessary. Such testimony shall be taken by the appeal tribunal in the manner prescribed for the conduct of hearings on appeals before appeal tribunals. Upon the completion of the taking of evidence by an appeal tribunal pursuant to the direction of the Board of Review, the claim or the issue involved in such claim shall be returned to the Board of Review for its decision upon the entire record, including the evidence before the appeal tribunal and such additional evidence and such oral argument as the Board of Review may permit before it.

(d) The Board of Review, in its discretion, may remand any claim or any issue involved in a claim to an appeal tribunal for the taking of additional evidence and a decision or may remand for a new decision only.

N.J. Admin. Code § 1:12-14.4 Failure to appear

(a) If the appellant fails to appear for a hearing before an appeal tribunal, the appeal tribunal may proceed to make its decision on the record or may dismiss the appeal on the ground of nonappearance unless it appears that there is good cause for adjournment.

(b) If an appeal tribunal issued an order of dismissal for nonappearance of the appellant, the chief appeals examiner shall, upon application made by such appellant, within six months after the making of such order of dismissal, and for good cause shown, set aside the order of dismissal and shall reschedule such appeal for hearing in the usual manner. An application to reopen an appeal made more than six months after the making of such order of dismissal may be granted at the discretion of the chief appeals examiner.

N.J. Admin. Code § 1:12-14.5 Scheduling of hearings

(a) Hearings before the Board of Review or Appeal Tribunal may be conducted in-person or by telephone. A telephone hearing, which means a hearing at which any party, witness, representative or attorney appears via telephone, may be initiated by the Board of Review or the Appeal Tribunal or upon the request of any party with the consent of the Board of Review or the Appeal Tribunal. Both in-person and telephone hearings shall be subject to the rules governing hearings and appeals in this chapter.

(b) The Board of Review or Appeal Tribunal will schedule telephone hearings:

1. When it appears from the record that a party or necessary witness is located more than 50 miles from the location from which the Board of Review or Appeal Tribunal will conduct the hearing;

2. When a party or witness cannot appear in person because of a physical, medical or other compelling reason;

3. For good cause shown on a case-by-case basis ; or

4. For the administrative expedience of the Board of Review or Appeal Tribunal.

(c) Any party to an appeal may request a telephone hearing by immediately contacting the Board of Review or Appeal Tribunal upon receipt of the notice of the scheduled in-person hearing with reasons for the request to have a telephone hearing. Prior to the hearing, the requesting party shall provide written notice to all other interested parties of the request for the telephone hearing.

(d) Any party may object to a telephone hearing. Objections shall be made immediately upon receipt of the notice or request for a telephone hearing and shall:

Be received by the Board of Review or Appeal Tribunal in advance of the hearing; and

2. Set forth the reasons supporting the objections.

(e) The Board of Review or Appeal Tribunal may deny a party's objection to a telephone hearing if the Board of Review or Appeal Tribunal determines:

1. That the objecting party's intent is to purposely inconvenience the other party or delay the proceeding;

2. That a party or witness is more than 50 miles away from the hearing site;

3. That a person is unable to appear in person because of physical, medical or other compelling reason; or

4. That good cause exists to order a telephone hearing notwithstanding the party's objection.

(f) The Board of Review or Appeal Tribunal may deny a party's objection to an in-person hearing when good cause exists to order an in-person hearing notwithstanding the party's objection.

(g) If the Board of Review or Appeal Tribunal accepts a party's objections, an appropriate hearing, either in-person or by telephone, shall be scheduled by the Board of Review or Appeal Tribunal.

(h) The Board of Review or Appeal Tribunal shall exercise its discretion in granting or denying such requests and immediately notify the parties of its decision.

History

• Amended by R.1999 d.291, effective 9/7/1999.
• See: 31 New Jersey Register 1550(a), 31 New Jersey Register 2603(a).
• Inserted (b)4 and (f)4.
• Amended by R.2005 d.107, effective 4/4/2005.
• See: 36 New Jersey Register 3957(a), 37 New Jersey Register 1015(b).
• Rewrote the section.

N.J. Admin. Code § 1:12-14.6 Conduct of telephone hearing

(a) The Board of Review or appeal tribunal, at the inception of the hearing, shall advise all participants that the proceedings are being recorded.

(b) Any party who fails to appear at the scheduled telephone hearing shall meet the requirements of N.J.A.C. 1:12-18.4 before any reopening of the hearing shall be granted.

(c) The Board of Review or appeal tribunal shall permit the parties, attorneys or other representatives a reasonable opportunity to question any witness testifying via telephone for the purpose of verifying the identity of such witness.

(d) Any party that intends to offer documentary or physical evidence at the telephone hearing shall submit a copy of that evidence to the Board of Review or appeal tribunal and all other interested parties immediately upon receipt of notice of the scheduled telephone hearing. Also, the requesting party shall provide timely notice of this request to offer evidence to all other interested parties.

1. Any evidence not submitted as required in this subsection may be admitted at the discretion of the Board of Review or the appeal tribunal provided that such evidence is submitted to the Board of Review or appeal tribunal and all other parties within 24 hours of the telephone hearing.

2. The other parties shall have 24 hours from the time of receipt of the evidence to properly respond to its admission and use.

3. Upon review of the evidence, the Board of Review or the appeal tribunal shall determine if the telephone hearing shall be continued.

(e) When the Board of Review or the appeal tribunal determines that a crucial document exists which is essential to the determination of the appeal, it shall make every effort to provide such document to the parties prior to the scheduled telephone hearing. If the document cannot be provided prior to the telephone hearing, the hearing may be postponed. If a document is disputed during the hearing, a continuance shall be granted to allow all parties an opportunity to review the document in question.

History

• Amended by R.1999 d.291, effective 9/7/1999.
• See: 31 New Jersey Register 1550(a), 31 New Jersey Register 2603(a).
• In (d), inserted a reference to all other interested parties in the introductory paragraph.

N.J. Admin. Code § 1:12-14.7 Disqualification of members of appeal tribunals

(a) No member of an appeal tribunal shall participate in the hearing of any appeal in which the member has an interest.

(b) Challenges to the interest of any member of an appeal tribunal may be heard and decided by the chief appeals examiner of the appeal tribunal, or, in the chief appeals examiner's discretion, referred to the Board of Review.

N.J. Admin. Code § 1:12-14.8 Hearing appeals on own motion

(a) Within the legal time limit for appeal following a decision by an appeal tribunal and in the absence of the filing by any of the parties to the decision of the appeal tribunal of a notice of appeal, the Board of Review, on its own motion, may remove such decision to itself and may either decide the case on the record below or may remand the decision to the appeal tribunal or may schedule a hearing before the Board of Review or order the parties to appear before it for a hearing on the claim or any issue involved therein.

(b) Such hearings shall be held only after five days' prior notice to the parties to the decision of the appeal tribunal, and shall be heard in the manner prescribed for the conduct of hearings before the Board of Review.

N.J. Admin. Code § 1:12-14.9 Case transfer on own motion

The Board of Review may, on its own motion, remove to itself or transfer to another Appeal Tribunal any case pending before an appeal tribunal for hearing and decision.

History

• Amended by R.2005 d.107, effective 4/4/2005.
• See: 36 New Jersey Register 3957(a), 37 New Jersey Register 1015(b).
• Rewrote the section.

Subchapter 15 EVIDENCE

N.J. Admin. Code § 1:12-15.1 General rules

(a) All exhibits admitted into evidence shall be properly identified, appropriately marked and retained as part of the record.

(b) Hearsay evidence shall be admissible and accorded whatever weight the examiner deems relevant, appropriate, and reasonable under the circumstances. Notwithstanding the admissibility of hearsay evidence, the decision as rendered must be supported by sufficiently substantial and legally competent evidence to provide assurance of reliability and to avoid the fact or appearance of arbitrariness.

N.J. Admin. Code § 1:12-15.2 Stipulations

The parties to an appeal, with the consent of the appellate body, may stipulate in writing the facts involved. The appellate body may decide the appeal on the basis of such stipulation, or, in its discretion, may set the appeal down for hearing and take such further evidence as it deems necessary to enable it to determine the appeal.

Subchapter 18 DECISIONS

N.J. Admin. Code § 1:12-18.1 Decisions of appeal tribunals

(a) Copies of all decisions concerning unemployment compensation benefits and State plan temporary disability or State plan family leave insurance claims and the reasons therefore shall be mailed to the claimant and to all other parties to the appeal and shall include or be accompanied by a notice specifying the appeal rights of the parties. The notice of appeal rights shall state clearly the place and manner for taking an appeal from the decision and the period within which an appeal may be taken.

(b) The decision shall be in the following form:

1. The first section shall indicate the party appealing, the determination appealed from, the date of the decision, and the date of the initiation of the appeal. The appearances shall be noted.

2. The second section shall be a recital of the facts upon which the decision is based and shall be entitled "Findings of Fact." It shall include among all the pertinent facts the date the claim was filed.

3. The third section shall be entitled "Opinion" and shall contain the reasons for the decision.

4. The fourth section shall contain the "Decision." This shall be followed by the signature of the examiner. Each decision shall also indicate the date of hearing and mailing.

(c) Every decision of an appeal tribunal shall, immediately upon issuance, be transmitted to the executive secretary of the Board of Review for consideration. The Board shall forthwith determine whether or not the decision shall be allowed to stand.

History

• Amended by R.2011 d.204, effective 8/1/2011.
• See: 42 N.J.R. 2170(a), 43 N.J.R. 1861(a).
• In (a), inserted "or State plan family leave insurance".

N.J. Admin. Code § 1:12-18.2 Decisions of Board of Review

(a) Following the conclusion of proceedings on an appeal, the Board of Review shall forthwith announce its decision with respect to the appeal. The decision shall be in writing and signed by at least a majority of the Board of Review. It shall set forth the findings of fact of the Board of Review with respect to the matters appealed, its opinion and decision. A quorum of the Board of Review must be present when any decision is voted.

(b) If a decision of the Board of Review is not unanimous, the decision of the majority shall control. The minority may file a dissent from such decision, which shall set forth the reasons why it fails to agree with the majority.

(c) Copies of all decisions concerning unemployment compensation benefits and State plan temporary disability or State plan family leave insurance claims shall be mailed by the Board of Review to the claimant and to all other parties to the appeal and shall include or be accompanied by a notice specifying the appeal rights of the parties. The notice of appeal rights shall state clearly the place and manner for taking an appeal from the decision and the period within which an appeal may be taken.

History

• Amended by R.2011 d.204, effective 8/1/2011.
• See: 42 N.J.R. 2170(a), 43 N.J.R. 1861(a).
• In (c), inserted "or State plan family leave insurance".

N.J. Admin. Code § 1:12-18.3 Correction of determination

On application duly made or on its own motion, the appellate body may revise a determination of facts and the order, for the purpose of correcting clerical or typographical errors.

N.J. Admin. Code § 1:12-18.4 Reopening Appeal Tribunal decisions

(a) In the absence of jurisdiction by the Board of Review, a party to a benefit claim may file a request for reopening of an Appeal Tribunal decision if:

1. The party's appeal to the Board of Review was dismissed as late without good cause;

2. The party did not appear at the Appeal Tribunal hearing for good cause shown;

3. The party is seeking to amend the Appeal Tribunal decision due to a mistake in law or computation thereby affecting the legal conclusion of the Appeal Tribunal; or

4. The party has new or additional evidence.

(b) Such request shall be submitted as promptly as possible, shall not act as a stay of proceedings in the case, and shall not suspend the payment of benefits. Additional time for such request may be granted where fraud, newly discovered evidence, or other good cause is shown.

(c) The Appeal Tribunal shall notify all interested parties of the request for reopening. The parties shall have 10 days to submit written arguments. After reviewing the matter, the Appeal Tribunal will schedule a hearing, issue an amended decision, or deny the request in an order explaining the reasons. All interested parties will be notified by the Appeal Tribunal of any subsequent decision or order which shall contain appeal rights to the Board of Review.

History

• New Rule, R.2005 d.107, effective 4/4/2005.
• See: 36 New Jersey Register 3957(a), 37 New Jersey Register 1015(b).
• Former N.J.A.C. 1:12-18.4, Reopening Board of Review decisions, recodified to N.J.A.C. 1:12-18.5.

N.J. Admin. Code § 1:12-18.5 Reopening Board of Review decisions

(a) A party to a benefit claim may file a request for reopening of a Board of Review decision within 10 days after the day of mailing of such decision. The requesting party shall notify all other parties of such a request for reopening. Such request shall not act as a stay of proceedings in the case and shall not suspend the payment of benefits. Failure of the Board of Review to act upon a request for reopening within 20 days of the date on which it is filed shall constitute a denial thereof as of the expiration of that period. Additional time may be granted where fraud, newly discovered evidence, or other good cause is shown.

(b) Any party, including the appellant whose appeal resulted in any affirmation of the appeal tribunal decision on the record made by the appeal tribunal, may apply for reopening of the Board's decision. If such application is granted all parties will be notified if a new hearing is scheduled.

History

• Recodified from N.J.A.C. 1:12-18.4 by R.2005 d.107, effective 4/4/2005.
• See: 36 New Jersey Register 3957(a), 37 New Jersey Register 1015(b).

Chapter 12A PRIVATE PLAN TEMPORARY DISABILITY AND PRIVATE PLAN FAMILY LEAVE INSURANCE CASES

Subchapter 1 HEARING APPLICABILITY

N.J. Admin. Code § 1:12A-1.1 Applicability

The rules in this chapter shall apply to private plan temporary disability and private plan family leave insurance cases heard by hearing officers of the Department of Labor and Workforce Development pursuant to N.J.S.A. 43:21-50(a) (see also N.J.A.C. 12:18). State plan temporary disability and State plan family leave insurance cases shall be heard by the Board of Review pursuant to N.J.S.A. 43:21-50(b), in accordance with N.J.A.C. 1:12.

History

• Administrative change.
• See: 37 N.J.R. 1511(a).
• Amended by R.2011 d.204, effective 8/1/2011.
• See: 42 N.J.R. 2170(a), 43 N.J.R. 1861(a).
• Inserted "and private plan family leave" and "and State plan family leave insurance".

Subchapter 2 DEFINITIONS

N.J. Admin. Code § 1:12A-2.1 Definitions

The following words and terms, as used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

"Act" means the Temporary Disability Benefits Law, N.J.S.A. 43:21-25 et seq.

"Division" means the Division of Unemployment Insurance or the Division of Temporary Disability Insurance in the Department of Labor and Workforce Development.

"Hearing officer" means the individual assigned to hear and decide appeals concerning private plan temporary disability and private plan family leave insurance benefits. In so doing, the hearing officer acts as agency head.

History

• Administrative change.
• See: 37 N.J.R. 1511(a).
• Amended by R.2011 d.204, effective 8/1/2011.
• See: 42 N.J.R. 2170(a), 43 N.J.R. 1861(a).
• In definition "Division", substituted "Insurance or the Division of" for "and"; and in definition "Hearing officer", inserted "and private plan family leave insurance".

Subchapter 5 REPRESENTATION

N.J. Admin. Code § 1:12A-5.1 Representation

A party may represent himself or herself or may be represented by an attorney or a non-lawyer representative pursuant to R. N.J.A.C. 1:21-1(f)(11). Representation by an attorney shall be at the party's expense. Representation by a non-lawyer representative shall comply with N.J.A.C. 1:1-5.4.

History

• Amended by R.2005 d.107, effective 4/4/2005.
• See: 36 New Jersey Register 3957(a), 37 New Jersey Register 1015(b).
• Rewrote the section.

Subchapter 9 SCHEDULING

N.J. Admin. Code § 1:12A-9.1 Informal hearing

After the filing of a complaint, the Division shall conduct such investigations and informal hearings as may be necessary to determine the facts and settle the issues and, pending a disposition, a formal hearing shall not be scheduled.

N.J. Admin. Code § 1:12A-9.2 Notice of formal hearing

(a) If the issues raised by the complaint are not otherwise settled, they shall be referred to a hearing officer, who shall afford the interested parties thereto a reasonable opportunity for a full, fair and impartial hearing, in accordance with the procedure required under this chapter.

(b) Written notices of the time and place of any hearing shall be given to the claimant and employer, or their authorized representatives, insurer or organization paying benefits, and all other parties in interest at least five days before the date of hearing, but a shorter notice may be given if not prejudicial to the parties.

(c) A party to whom a notice of appeal has been sent shall be ready and present with all evidence and necessary witnesses at the time and place specified and shall be prepared to dispose of all issues and questions involved in the proceeding.

(d) A notice of hearing may be served personally or by certified or registered mail or by telegram upon a party or his or her duly authorized representative.

Subchapter 10 DISCOVERY

N.J. Admin. Code § 1:12A-10.1 Inspection of records

(a) Orders for the production or inspection of records of the Division may be issued in any proceeding before the hearing officer, but only to the extent necessary for the purpose of the proceeding and to enable any party to the proceeding to fully discharge his or her obligation or safeguard his or her rights under the Act.

(b) A request for the production or inspection of records shall be addressed to the hearing officer, and shall state clearly the nature of the information desired and the reason therefor. The hearing officer may determine whether or not the request shall be granted and, if granted, inspection of the records may be allowed or a copy of the records furnished.

Subchapter 11 SUBPOENAS

N.J. Admin. Code § 1:12A-11.1 Issuance of subpoenas

(a) The hearing officer shall have the power to administer oaths, take depositions, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda and other records.

(b) Subpoenas to compel the attendance of witnesses or production of records shall be issued by the hearing officer only upon the showing of the necessity therefor by the party applying for the issuance of such subpoena.

N.J. Admin. Code § 1:12A-11.2 Witness fees

(a) Witness fees at the rate of $ 1.00 for each day of attendance upon a hearing in response to a subpoena to testify and mileage at the rate of $ 0.25 per mile from the residence of the witness to the place of hearing and return, shall be paid upon presentation of a voucher signed by the individual entitled thereto and properly certified by a member of the hearing officer before whom the individual appeared as a witness.

(b) Witness fees at the rate of $ 2.00 for each day of attendance upon a hearing in response to a subpoena duces tecum and mileage at the rate of $ 0.25 per mile from the residence of the witness to the place of hearing and return, shall be paid upon the presentation of a voucher signed by the individual entitled thereto and properly certified by the hearing officer before whom the individual appeared as a witness.

Subchapter 14 CONDUCT OF CASES

N.J. Admin. Code § 1:12A-14.1 Conduct of hearings

(a) The hearing before the hearing officer shall be conducted in such order and manner as may provide a fair and impartial hearing to ascertain the facts and determine the rights of parties.

(b) At such hearing, evidence exclusive of ex parte affidavits may be produced by any party, but the hearing officer shall not be bound by the rules of evidence.

(c) The hearing officer shall open the hearing by ascertaining the facts and summarizing the issues involved on the record.

(d) Any individual who is a party, or an attorney or non-attorney representing a party, may examine or cross-examine witnesses, inspect documents and explain or rebut any evidence. The hearing officer may examine each party or witness to such extent as he or she deems necessary.

(e) Any number of proceedings before the hearing officer may be consolidated for the purpose of hearing when the facts and circumstances are similar in nature and the rights of any party will not be prejudiced thereby. Notice of such consolidation shall be given to the parties or their representatives.

(f) All testimony at a hearing shall be under oath or affirmation and recorded, but need not be transcribed unless the order on the disputed claim is to be reviewed.

(g) The hearing officer may take additional evidence as he or she deems necessary, provided the parties shall be given proper notice of the time and place of hearing.

(h) The parties may stipulate the facts and issues involved and based thereon the hearing officer may make a determination and an order disposing of the issues which shall be final and binding.

N.J. Admin. Code § 1:12A-14.2 Dismissal of complaint

(a) After due notice of the time and place of hearing or an adjourned hearing, if any party fails or neglects to appear, the issues may be decided upon the basis of the evidence available, the complaint may be dismissed or evidence may be taken from the parties and witnesses appearing and the case disposed of in accordance with such evidence. A complaint may be dismissed for failure to prosecute without good cause within a reasonable time. All parties shall be notified of the dismissal and the reasons therefor.

(b) Any complaint dismissed by reason of the failure to appear at a scheduled hearing or failure to prosecute may be reconsidered by the hearing officer provided good cause is shown for such failure and an application for reopening the proceeding is made within 10 days after mailing or notification of the order of dismissal.

(c) A pending complaint, with the approval of the hearing officer, may be withdrawn by the complainant, in writing, or orally at the time of hearing. All parties to the proceeding shall be notified of the withdrawal.

Subchapter 15 DECISIONS

N.J. Admin. Code § 1:12A-15.1 Rendition of decision

(a) Upon the completion of any hearing, the hearing officer shall promptly make a determination of facts, and a signed written order disposing of the issues presented, which shall be final and binding on the claimant, the employer, the insurer, the organization paying benefits and all other parties. The decision shall set forth a statement of the facts involved, the reasons and the order.

(b) A copy of such order shall be served upon each of the parties or their duly authorized representatives by registered mail, addressed to his or her last known address.

(c) The order of the hearing officer shall be final and benefits paid or denied in accordance with the order.

(d) Any appeal of the order shall be in accordance with the Rules of Court.

N.J. Admin. Code § 1:12A-15.2 Correction of determination

On application duly made or on his or her own motion, the hearing officer may revise a determination of facts and the order, for the purpose of correcting clerical or typographic errors.

Chapter 13 MOTOR VEHICLE COMMISSION CASES

Subchapter 1 APPLICABILITY

N.J. Admin. Code § 1:13-1.1 Applicability

(a) The rules of this chapter shall apply to hearings transmitted by the Motor Vehicle Commission (MVC) except fatal accident cases, which shall be conducted in accordance with N.J.S.A. 39:5-30(b)and (e) and N.J.A.C. 1:13-14.5.

(b) Any aspect of the hearing not covered by these special hearing rules shall be governed by the Uniform Administrative Procedure Rules (U.A.P.R.) contained in N.J.A.C. 1:1. To the extent that these rules are inconsistent with the U.A.P.R., these rules shall apply.

History

• Amended by47 N.J.R. 1311(a), Effective 6/15/2015

Subchapter 4 AGENCY RESPONSIBILITY BEFORE TRANSMISSION TO THE OFFICE OF ADMINISTRATIVE LAW

N.J. Admin. Code § 1:13-4.1 Agency conference; failure to reach settlement

(a) The Motor Vehicle Commission shall, pursuant to N.J.A.C. 13:19-1.2, conduct a conference in any case where the hearing request sets forth disputed material facts which the licensee intends to raise at the hearing. The conference shall be conducted pursuant to N.J.A.C. 13:19-1.3 through N.J.A.C. 13:19-1.8. If the hearing request does not set forth disputed material facts but does present legal issues and arguments, the Chief Administrator of the MVC may decide the case based upon the written record, may schedule a conference pursuant to N.J.A.C. 13:19-1.3 through N.J.A.C. 13:19-1.8 or may transmit the matter directly to the OAL for a hearing.

(b) If settlement is not reached, the parties shall use the conference to prepare the issues and evidence for the hearing, including:

1. Ascertaining whether the licensee disputes any facts recorded on the licensee's record abstract issued by MVC, and, if so, which facts and on what basis;

Ascertaining whether the licensee disputes the severity of the action proposed by MVC, and, if so, on what basis;

3. Ascertaining any discovery needs of the licensee; and

4. Ascertaining in excessive points cases whether the licensee is entitled to a time credit and, if so, the length thereof.

(c) At or forthwith after the conference, MVC shall supply the licensee with any material requested pursuant to N.J.A.C. 1:13-10.1 (Discovery), or any other appropriate documents.

(d) If settlement is not reached, MVC shall transmit the case to the Office of Administrative Law, including the documents set forth in N.J.A.C. 1:13-14.3.

History

• Amended by47 N.J.R. 1311(a), Effective 6/15/2015

Subchapter 10 DISCOVERY

N.J. Admin. Code § 1:13-10.1 Discovery in excessive points and persistent violator cases

(a) Discovery in excessive points and persistent violator cases shall be limited to the records of MVC with respect to the case. The records shall include a certified copy of the licensee's driving record abstract, relevant notices and orders of suspension, and certified proof of relevant mailings to the licensee.

(b) MVC shall supply the licensee with a copy of the records set forth in N.J.A.C. 1:13-10.1(a).

(c) The licensee may make any discovery request either as part of the licensee's request to MVC for a hearing or at any pretransmission conference conducted by MVC.

History

• Amended by47 N.J.R. 1311(a), Effective 6/15/2015

Subchapter 14 CONDUCT OF CASES

N.J. Admin. Code § 1:13-14.1 Reserved

History

• Reseved by47 N.J.R. 1311(a), Effective 6/15/2015

N.J. Admin. Code § 1:13-14.2 Reserved

History

• Reseved by47 N.J.R. 1311(a), Effective 6/15/2015

N.J. Admin. Code § 1:13-14.3 Agency case

In excessive points and persistent violator cases, MVC's case will be based on the licensee's driving record, a prehearing conference report, relevant notices and orders of suspension, certified proof of relevant mailings to the licensee, and any other documentary evidence or legal briefs necessary.

History

• Amended by47 N.J.R. 1311(a), Effective 6/15/2015

N.J. Admin. Code § 1:13-14.4 Reserved

History

• New Rule, R.1990 d.220, effective 5/7/1990.
• See: 22 N.J.R. 91(a), 22 N.J.R. 1353(b).
• Amended by R.1991 d.279, effective 6/3/1991 (operative July 1, 1991).
• See: 23 N.J.R. 639(a), 23 N.J.R. 1786(a).
• Revised text to conform with "failure to appear" rules at N.J.A.C. 1:1-14.4, deleting text regarding time limits that are no longer applicable.
• Amended by R.1997 d.158, effective 4/7/1997.
• See: 29 N.J.R. 282(a), 29 N.J.R. 1295(a).
• Designated existing text as (a) and added (b).
• Recodified in part from N.J.A.C. 1:13-14.3 and amended by R.2002 d.198, effective 7/1/2002.
• See: 34 N.J.R. 983(a), 34 N.J.R. 2309(a).
• In (b), substituted "(a)" for "(b)" preceding "above". Former N.J.A.C. 1:13-14.4, Failure to Appear, recodified to N.J.A.C. 1:13-14.5.
• Recodified to N.J.A.C. 1:13-14.3 by R.2007 d.393, effective 12/17/2007.
• See: 39 N.J.R. 2393(a), 39 N.J.R. 5201(a).
• Section was "Agency Case".

N.J. Admin. Code § 1:13-14.5 Failure to appear

If, after appropriate notice, the licensee fails to appear at a preliminary fatal accident hearing scheduled pursuant to N.J.S.A. 39:5-30, the judge shall issue an order immediately suspending or continuing the suspension of the licensee's driving privileges. Thereafter, the provisions of N.J.A.C. 1:1-14.4 shall apply.

History

• Amended by47 N.J.R. 1311(a), Effective 6/15/2015

Chapter 13A DIVISION OF CONSUMER AFFAIRS LEMON LAW HEARINGS

Subchapter 1 APPLICABILITY

N.J. Admin. Code § 1:13A-1.1 Applicability

The special rules in this chapter shall apply to matter transmitted to the Office of Administrative Law (OAL) by the Division of Consumer Affairs (Division) wherein a consumer of a motor vehicle or of a motorized wheelchair seeks a refund or replacement of the vehicle from a manufacturer under the provisions of the New Jersey Lemon Law, N.J.S.A. 56:12-29 et seq. and of N.J.S.A. 56:12-75. These special rules must be read in conjunction with the Division of Consumer Affairs' rules on dispute resolution at N.J.A.C. 13:45A-26.1 through 26.17. Any aspect of the OAL hearing not covered by these special hearing rules shall be governed by the Uniform Administrative Procedure Rules (U.A.P.R.) contained in N.J.A.C. 1:1. To the extent that these special rules are inconsistent with the U.A.P.R., these rules shall apply.

History

• Amended by R.1993 d.422, effective 9/7/1993.
• See: 25 New Jersey Register 2625(a), 25 New Jersey Register 4063(a).
• Amended by R.1996 d.434, effective 9/16/1996.
• See: 28 New Jersey Register 3206(b), 28 New Jersey Register 4219(a).
• Extended application to motorized wheelchairs and added reference to N.J.S.A. 56:12-75.

N.J. Admin. Code § 1:13A-1.2 Presumptions

An initial decision mailed pursuant to these rules shall be presumed to be received three days after mailing.

History

• New Rule, R.1993 d.289, effective 6/7/1993.
• See: 24 New Jersey Register 1843(a), 25 New Jersey Register 2247(a).

Subchapter 8 FILING AND TRANSMISSION OF CONTESTED CASES IN THE OFFICE OF ADMINISTRATIVE LAW

N.J. Admin. Code § 1:13A-8.1 Agency filing with the Office of Administrative Law

Immediately after accepting a consumer's application for dispute resolution under N.J.A.C. 13:45A-26.1 0(c), the matter shall be transmitted to the Office of Administrative Law. The division shall not attempt to settle the case before transmitting the matter to the OAL.

Subchapter 9 SCHEDULING; CLERK'S NOTICES; ADJOURNMENTS; INACTIVE LIST

N.J. Admin. Code § 1:13A-9.1 Scheduling of summary proceedings

Upon acceptance of a consumer's application for dispute resolution, the Division and the Office of Administrative Law shall immediately arrange a summary hearing date which, to the greatest extent possible, shall be convenient to all parties. Unless the consumer agrees to a later date, the summary hearing shall be no later than 20 days from the date of acceptance of the consumer's application.

History

• Amended by R.1999 d.64, effective 3/1/1999.
• See: 30 New Jersey Register 4308(a), 31 New Jersey Register 637(a).
• Rewrote the section.

N.J. Admin. Code § 1:13A-9.2 Clerk's notices

The Clerk shall send a written notice of filing and summary hearing to each party.

Subchapter 10 DISCOVERY

N.J. Admin. Code § 1:13A-10.1 Discovery

(a) The consumer's application for dispute resolution, the required attachments and the manufacturer's response shall be provided as specified by N.J.A.C. 13:45A-26.1 0(b) and (f).

(b) No other discovery shall be permitted.

Subchapter 12 MOTIONS

N.J. Admin. Code § 1:13A-12.1 Limitations on prehearing motions

Except for a motion for adjournment to which the consumer has consented, a party may not file any motion before the scheduled date of hearing.

Subchapter 13 PREHEARING CONFERENCES AND PROCEDURES

N.J. Admin. Code § 1:13A-13.1 Prehearing conferences

Prehearing conferences will not be scheduled in any proceeding conducted under this chapter.

Subchapter 14 CONDUCT OF CASES

N.J. Admin. Code § 1:13A-14.1 Failure to appear

If a party fails to appear at any proceeding scheduled by the Clerk or judge, the provisions of N.J.A.C. 1:1-14.4 shall apply.

History

• Amended by R.1991 d.279, effective 6/3/1991 (operative July 1, 1991).
• See: 23 New Jersey Register 639(a), 23 New Jersey Register 1786(a).
• Recodified original subsections (a)-(b) to single subsection of rule text. Deleted text superseded by amendments made to N.J.A.C. 1:1-14.4 for procedures on "failure to appear" cases.

N.J. Admin. Code § 1:13A-14.2 Conduct of hearing

(a) Except as modified by N.J.A.C. 1:13A-14.3, the hearing shall be conducted pursuant to the provisions of N.J.A.C. 1:1-14.7(a) through (e).

(b) There shall be no proposed findings of fact, conclusions of law, briefs, forms of order or other posthearing submissions permitted after the final argument except if permitted by the judge for good cause. In no event shall the submission of posthearing documents extend the 20 days permitted for issuing an initial decision.

History

• Amended by R.1993 d.422, effective 9/7/1993.
• See: 25 New Jersey Register 2625(a), 25 New Jersey Register 4063(a).

N.J. Admin. Code § 1:13A-14.3 Burden of producing evidence

The consumer shall first present his or her evidence. The manufacturer may then present any contradictory evidence or argument and affirmative defenses as set forth in the statute.

LAW REVIEWS AND JOURNAL COMMENTARIES:

Expert testimony not required in Lemon Law suits, court says. Matt Ackermann, 150 N.J.L.J. 609 (1997).

N.J. Admin. Code § 1:13A-14.4 Proof of fees and costs

(a) At the hearing in a matter concerning a motor vehicle, the consumer shall present proof of any costs incurred in preparing for the hearing. If the consumer is represented, the consumer's attorney shall also present a certified statement of fees to date and a statement of the hourly rate or other fee for appearing at the hearing.

(b) A prevailing consumer in a matter concerning a motor vehicle shall be awarded the following fees and costs: reasonable attorney's fees, filing fee, fees for reports prepared by expert witnesses or for the appearance and testimony of expert witnesses.

History

• Amended by R.1993 d.422, effective 9/7/1993.
• See: 25 N.J.R. 2625(a), 25 N.J.R. 4063(a).
• Amended by R.1996 d.434, effective 9/16/1996.
• See: 28 N.J.R. 3206(b), 28 N.J.R. 4219(a).
• In (a) and (b) restricted section to matters concerning motor vehicles.

Subchapter 18 INITIAL DECISION; EXCEPTIONS; FINAL DECISION; REMAND; EXTENSIONS OF TIME LIMITS

N.J. Admin. Code § 1:13A-18.1 Initial decisions

(a) An initial decision shall be issued in writing no later than 20 days from the conclusion of the hearing.

(b) The initial decision shall include a caption; date record closed; appearances by the parties and representatives, if any; statement of the case; brief summary of findings of fact and conclusion of law and reasons therefor; appropriate remedies, and specific dates for completion of all awarded remedies. In a case concerning a motor vehicle, if the decision concludes that the consumer is the prevailing party, the initial decision shall also include an award of reasonable attorney's fees and other costs.

(c) The initial decision shall be mailed promptly to the agency head and to the parties.

(d) Within four days after the initial decision is mailed to the agency head, the Clerk shall certify the entire record with original exhibits to the agency head.

History

• Amended by R.1993 d.289, effective 6/7/1993.
• See: 24 New Jersey Register 1843(a), 25 New Jersey Register 2247(a).
• Added new (c); redesignated revised (c) to (d).
• Amended by R.1993 d.422, effective 9/7/1993.
• See: 25 New Jersey Register 2625(a), 25 New Jersey Register 4063(a).
• Amended by R.1996 d.434, effective 9/16/1996.
• See: 28 New Jersey Register 3206(b), 28 New Jersey Register 4219(a).
• In (b) limited fee awards in initial decisions to matters concerning motor vehicles.

N.J. Admin. Code § 1:13A-18.2 Exceptions; replies

(a) If a party wishes to take exception to the initial decision, such exception must be submitted in writing to the Director of the Division of Consumer Affairs, the judge and to all parties. Exceptions must be received by the Division of Consumer Affairs no later than eight days after the initial decision was mailed to the parties. Exceptions shall not exceed three pages in length. In all other respects, exceptions shall conform to the requirements of N.J.A.C. 1:1-18.4(b) and (c).

(b) No replies or cross-exceptions shall be permitted.

History

• Repeal and New Rule, R.1993 d.289, effective 6/7/1993.
• See: 24 New Jersey Register 1843(a), 25 New Jersey Register 2247(a).
• Section was "Exemptions; replies".

N.J. Admin. Code § 1:13A-18.3 Final decision

The Director of the Division of Consumer Affairs shall issue a final decision which shall adopt, reject or modify the initial decision no later than 15 days from receipt of the initial decision. Unless a final decision is issued within the 15 day period, the initial decision shall be deemed adopted as the final decision and the requirements and penalties of N.J.A.C. 13:45A-26.1 2(c) and (d) and N.J.A.C. 13:45A-26.1 3 shall apply.

History

• Amended by R.1993 d.422, effective 9/7/1993.
• See: 25 New Jersey Register 2625(a), 25 New Jersey Register 4063(a).

N.J. Admin. Code § 1:13A-18.4 Extensions of time limits

Time limits for filing an initial decision and for issuing a final decision shall not be extended.

Subchapter 19 SETTLEMENTS AND WITHDRAWALS

N.J. Admin. Code § 1:13A-19.1 Settlements

If a case involving a motor vehicle is settled, the settlement shall indicate whether attorney's fees and other costs will be paid by the manufacturer to the consumer or whether such fees and costs have been waived by the consumer.

History

• Amended by R.1996 d.434, effective 9/16/1996.
• See: 28 New Jersey Register 3206(b), 28 New Jersey Register 4219(a).
• Restricted section to matters concerning motor vehicles.

Chapter 14 BOARD OF PUBLIC UTILITIES

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 1:14-1.1 Applicability

The special rules in this chapter shall apply to contested case hearings arising before the Board of Public Utilities (BPU). Any aspect of the hearing not covered by these special hearing rules shall be governed by the Uniform Administrative Procedure Rules (U.A.P.R.) contained in N.J.A.C. 1:1. To the extent that these special rules are inconsistent with the U.A.P.R., these rules shall apply.

History

• Administrative Change.
• See: 23 New Jersey Register 3647(a).

Subchapter 2 DEFINITIONS

N.J. Admin. Code § 1:14-2.1 Definitions

The following words and terms, as used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

"Judge" means an administrative law judge, the BPU or a single Commissioner of the BPU who presides over a contested case under N.J.S.A. 48:2-32.

"Public hearing" means a hearing conducted pursuant to N.J.S.A. 52:14B-4(g) because the law requires the hearing in conjunction with the contested case. It is not an "evidentiary hearing" or "plenary hearing" as defined in N.J.A.C. 1:1-2.1. It is a hearing to which the public is specifically invited to attend and express views, to provide comments or to raise objections to the subject matter being considered.

History

• Administrative Change.
• See: 23 New Jersey Register 3647(a).

Subchapter 5 REPRESENTATION

N.J. Admin. Code § 1:14-5.1 Appearance by the BPU

The BPU may be represented by a deputy attorney general or a non-lawyer agency employee pursuant to N.J.A.C. 1:1-5.4(a).

History

• Administrative Change.
• See: 23 New Jersey Register 3647(a).

Subchapter 8 TRANSMISSION OF CONTESTED CASES TO THE OFFICE OF ADMINISTRATIVE LAW

N.J. Admin. Code § 1:14-8.1 Transmittal to the OAL

In the transmittal form, as required by N.J.A.C. 1:1-8.2, the BPU shall indicate whether it will be a party to the proceeding and whether it will be represented by an agency employee pursuant to N.J.A.C. 1:1-5.4(a) or a deputy attorney general.

History

• Administrative Change.
• See: 23 New Jersey Register 3647(a).

Subchapter 9 SCHEDULING; NOTICES

N.J. Admin. Code § 1:14-9.1 Notice of hearing

(a) Upon receiving notice of the time, date and place of hearing from the Clerk, in accordance with N.J.S.A. 48:3-17.7 a petitioner who has filed for authority to exercise the power of eminent domain shall give each respondent whose name and address is known at least 20 days notice of the hearing. At least five days prior to the hearing date, the petitioner shall file with the judge proof of such notice pursuant to N.J.A.C. 1:1-7.2.

(b) In any proceeding, the judge may require a party to give notice of the hearing and its scope to persons who may be affected by the proceeding, which may include publication and posting of notice of hearing, at such party's expense, in such manner and for such time and in such newspapers as the judge may designate.

N.J. Admin. Code § 1:14-9.2 Public hearings

(a) Whenever a public hearing is required by statute or rule the judge may instruct the utility to secure an appropriate location for the hearing and to accomplish whatever public notice may be required by statute or rule.

(b) Unless a statute requires otherwise or the judge directs otherwise for good cause shown, public hearings shall be conducted during the evening after regular business hours or at some other time which would be convenient to those persons interested in the subject matter of the public hearing.

(c) The Clerk shall notify the parties to the proceeding of any public hearing and shall ensure that the proceeding is stenographically transcribed.

(d) Persons opposing or supporting petitions or tariff schedules may testify at public hearings. The judge may permit the utility or other parties to cross-examine these persons. Persons who testify at public hearings shall not be entitled to notice of any subsequent proceedings unless they qualify as a participant or intervenor under N.J.A.C. N.J.S.A. 1:1-16.

Subchapter 10 DISCOVERY

N.J. Admin. Code § 1:14-10.1 Depositions

In addition to the discovery methods specified in N.J.A.C. 1:1-10.2(a), depositions upon oral examination or written questions of experts and other designated witnesses whose written testimony has been prefiled in the case shall be available upon written notice by a party in a ratemaking proceeding.

Subchapter 14 CONDUCT OF CASES

N.J. Admin. Code § 1:14-14.1 Prefiled testimony

(a) The judge may require that all parties prefile their direct testimony in writing, certified, verified or sworn to under oath. The schedule for the submission of this testimony shall be established by the judge to ensure a fair and expeditious hearing.

(b) The judge shall adjust the discovery schedule to facilitate the timely filing of prefiled direct testimony.

History

• New Rule, R.1991 d.501, effective 10/7/1991.
• See: 23 New Jersey Register 2083(c), 23 New Jersey Register 2998(c).

N.J. Admin. Code § 1:14-14.2 Cross-examination

The judge may restrict any cross-examination whose purpose appears to be primarily for discovery.

N.J. Admin. Code § 1:14-14.3 Transcripts

(a) In cases involving an order to show cause or an investigative order initiated by the BPU, respondents shall purchase an original and one copy of the transcript and shall provide the judge with a copy of the hearing transcript within 15 working days of the date of hearing. In all other cases, the petitioner shall provide the judge with a copy of the hearing transcript within 15 days of the hearing date.

(b) The party responsible for providing the judge with a copy of the transcript is responsible for the cost of the original and one copy of the transcript, the daily appearance fee of the court reporter and, when applicable, any costs associated with complying with N.J.A.C. 1:1-14.1 1(j).

(c) The judge may waive or modify the application of this rule at any time for good cause shown.

History

• Administrative Change.
• See: 23 New Jersey Register 3647(a).

N.J. Admin. Code § 1:14-14.4 Interlocutory review

(a) When a party requests interlocutory review, the BPU shall make a determination as to whether to accept the request and conduct an interlocutory review by the later of the following:

1. Ten days after receiving the request for interlocutory review; or

2. The BPU's next regularly scheduled open meeting after expiration of the 10-day period from receipt of the request for interlocutory review.

(b) If the BPU determines to conduct an interlocutory review, the BPU shall issue a decision, order, or other disposition of the review no later than the next scheduled Board meeting on or after the 20th day following that determination.

(c) Where the BPU does not issue an order within the timeframe set out in (b) above, the judge's ruling shall be considered conditionally affirmed. The time period for disposition may be extended for good cause for an additional 20 days if both the Board and the Director of the Office of Administrative Law concur.

History

• Amended by 46 N.J.R. 1471(a), effective 6/16/2014

Subchapter 15 EVIDENCE RULES

N.J. Admin. Code § 1:14-15.1 Witnesses and prefiled testimony

(a) Sworn, certified or verified written prefiled testimony of a witness may be admitted by the judge. Unless the parties consent to the admissibility of this written testimony without the necessity of an appearance, the witness shall appear at the hearing and be available for cross-examination on the prefiled written testimony.

(b) The judge may preclude any witness from testifying in a party's direct case when the witnesses' written testimony has not been filed in accordance with a schedule for such submissions established by the judge.

Chapter 19 CASINO CONTROL COMMISSION

Subchapter 1 APPLICABILITY

N.J. Admin. Code § 1:19-1.1 Applicability

(a) The rules in this chapter shall apply to contested case hearings arising under the Casino Control Act, N.J.S.A. 5:12-1 et seq.

(b) Any aspect of the hearing process not covered by the special hearing rules in this chapter shall be governed by the provisions of the Casino Control Act and the Uniform Administrative Procedure Rules (UAPR) contained in N.J.A.C. 1:1. To the extent that the special hearing rules in this chapter are inconsistent with the UAPR, the rules in this chapter shall apply.

Subchapter 2 DEFINITIONS

N.J. Admin. Code § 1:19-2.1 Initial decision defined

"Initial decision" means the recommended findings of fact, conclusions of law and disposition, based upon the evidence and arguments presented during the course of the hearing, issued by the administrative law judge, commission member, or hearing officer appointed pursuant to N.J.S.A. 5:12-107a and made a part of the record which is sent to the Casino Control Commission for a final decision.

Subchapter 5 REPRESENTATION

N.J. Admin. Code § 1:19-5.1 Multiple party representation

(a) In any circumstances described in (b) below, an attorney who intends to represent more than one party in the same or a substantially related matter shall file a petition for approval no later than 10 days after filing a pleading or entering an appearance in the matter, whichever is earlier. The petitioner shall file such petition with the Casino Control Commission (Commission), or with the Clerk of the Office of Administrative Law (OAL) if the matter has been transmitted to it, and one copy with the Division of Gaming Enforcement.

1. The Division may, within 10 days from the date that the petition is filed, file a written response to the petition with the Commission, or with the OAL, if the matter has been transmitted to it.

(b) No attorney shall represent the following parties respondent unless a petition pursuant to (a) above is granted:

1. A casino licensee or applicant and any person who at the time of the alleged violation was an employee of said licensee or applicant;

2. A casino service industry enterprise licensee or applicant and any person who at the time of the alleged violation was employed by said licensee or applicant;

3. Two persons who at the time of the alleged violation were employed by the same casino licensee or applicant where one such employee had supervisory responsibility over the other employee; or

4. Two persons who at the time of the alleged violation were employed by the same casino service industry enterprise licensee or applicant where one such employee had supervisory responsibility over the other employee.

(c) Any petition filed pursuant to (a) above shall be in writing and shall include:

1. The nature of the petition and the reasons therefore;

2. The name and docket number of the matter involved;

The name and address of the parties represented;

4. A concise statement of the nature of the allegations raised in the complaint and the reasons why no conflict of interest is presented;

5. The certification of the attorney/petitioner detailing the basis of his or her belief that the representation will not adversely affect his or her relationship with each party respondent; and

6. The certification of each respondent acknowledging full disclosure of the potential conflict of interest and consenting to his or her representation by the attorney/petitioner.

(d) Upon receipt of a petition pursuant to (a) and (c) above:

1. If the matter will be heard by the Commission, the matter shall be forwarded to the chair or to such other Commission member as the chair may designate. Thereafter, with the advice and recommendation of the General Counsel of the Commission, the petition shall be evaluated on the papers submitted and in conformity with the Rules of Professional Conduct governing conflict of interest, R.P.C. 1.7 through 1.10, and any applicable statutory provisions, judicial decisions, rules of court, or determinations of the Supreme Court's Advisory Committee on Professional Ethics or other appropriate authority.

If the matter has been transmitted to the OAL for hearing, the petition shall be forwarded to the Office of Administrative Law for determination by an administrative law judge.

(e) All interested parties shall be advised of the decision of the judge, either orally or in writing no later than 15 days from the date that the petition is filed. If the decision is communicated orally, it shall be reduced to writing and mailed to the petitioner within five days.

(f) Any time limitations imposed by (a) and (e) above may be extended by the judge for good cause, upon notice to all parties.

(g) Any party may appeal from the determination of the chair or the chair's designee to the full Commission upon written notice filed within five days. If the petition is determined by an administrative law judge, appeal shall be to the Director of the Office of Administrative Law pursuant to N.J.A.C. 1:1-14.1 0.

Subchapter 7 SERVICE AND FILING OF PAPERS

N.J. Admin. Code § 1:19-7.1 Notices

Unless otherwise provided by the Casino Control Act, orders and notices related to a contested case including, without limitation, notices concerning the scheduling of conferences, hearings, deferrals, reinstatement after deferrals, and postponements shall be served upon all parties by ordinary mail, except that hearing notices in proceedings against a licensee or registrant shall be served by certified mail. All hearing notices shall be served at least 10 days prior to the hearing.

History

• Amended by 47 N.J.R. 2263(a), effective 9/8/2015

Subchapter 9 ADJOURNMENTS; INACTIVE LIST

N.J. Admin. Code § 1:19-9.1 Placement on inactive list pending disposition of charges against applicant or respondent

(a) An applicant or respondent who is currently being prosecuted for or charged with an offense that is enumerated in N.J.S.A. 5:12-86c may move to place the case on the inactive list pursuant to N.J.S.A. 5:12-86d. Any such motion shall be processed in accordance with the provisions of N.J.A.C. 1:1-9.7 except that the judge shall, in all cases, grant the motion if the applicant or respondent establishes the existence of such prosecution or pending charge.

(b) An applicant or respondent whose case has been placed on the inactive list pursuant to this section shall notify the judge within 10 days of the disposition of the charge that was the basis for the deferral. Any applicant or respondent who fails to comply with the notice requirements of this subsection shall be deemed to have withdrawn his or her request for a hearing pursuant to N.J.A.C. 1:1-19.2. Unless the applicant or respondent submits to the Casino Control Commission (Commission) a satisfactory written explanation for his or her failure within 20 days of the date of disposition, the Commission may take final action on the case pursuant to N.J.A.C. 19:42A-2.5.

(c) Any case placed on the inactive list pursuant to this section shall be returned to active status by the judge assigned to the case immediately upon:

1. The receipt of notice from the applicant or respondent pursuant to (b) above; or

2. The expiration of the deferral period established by the judge pursuant to N.J.A.C. 1:1-9.7(a)1.

(d) Notwithstanding (c)2 above and N.J.A.C. 1:1-9.7(a)3, a judge shall continue the inactive status of a case placed on the inactive list pursuant to (a) above if the applicant or respondent demonstrates that:

1. The prosecution or charge remains pending; and

2. The failure to achieve disposition has not been caused by any action or inaction of his or her part.

History

• Amended by 47 N.J.R. 2263(a), effective 9/8/2015

N.J. Admin. Code § 1:19-9.2 Adjournments

(a) An application for the adjournment of a proceeding scheduled to be heard directly by the Casino Control Commission (Commission) or by a member of the Commission shall be made to the Commission clerk or representative designated in the scheduling notice; provided, however, that the adjournment of a hearing may only be approved by the judge. An application for adjournment of a matter transmitted to the Office of Administrative Law shall proceed pursuant to N.J.A.C. 1:1-9.6.

(b) The conduct of voluntary settlement negotiations shall not be considered sufficient grounds for the issuance of an adjournment.

Subchapter 10 DISCOVERY

N.J. Admin. Code § 1:19-10.1 Time for discovery

(a) Each party to a contested case shall provide, at a minimum, the following discovery to each other party either personally or by ordinary mail:

1. A copy of any document which the party intends to introduce at the hearing;

2. A list of the names and addresses of any witnesses which the party intends to call at the hearing; and

3. The qualifications of any expert witness which the party intends to call at the hearing and a copy of any reports prepared by the witness or a summary of the testimony that the witness will offer.

Subchapter 12 RESERVED

N.J. Admin. Code § 1:19-12.1 Repealed

History

• Repealed by 47 N.J.R. 2263(a), effective 9/8/2015

Subchapter 13 PREHEARING CONFERENCES AND PROCEDURES

N.J. Admin. Code § 1:19-13.1 Conduct of prehearing conference by a designated representative of the Casino Control Commission

(a) If a matter will be heard by the Casino Control Commission (Commission), prior to the transmission of a contested case to a hearing commissioner, the chair may designate a representative to conduct any prehearing conference proceedings authorized by N.J.A.C. N.J.S.A. 1:1-13.

(b) If, pursuant to (a) above, a representative of the chair is designated to conduct a prehearing conference, the designated representative shall issue a prehearing memorandum in accordance with the requirements of N.J.A.C. 1:1-13.2 and such memorandum shall have the same force and effect as a prehearing order issued by a judge.

(c) Settlements reached at a prehearing conference scheduled pursuant to (a) above shall be submitted to the Commission for disposition pursuant to N.J.A.C. 19:42A-3.2(b).

History

• Amended by 47 N.J.R. 2263(a), effective 9/8/2015

Subchapter 14 CONDUCT OF CONTESTED CASES

N.J. Admin. Code § 1:19-14.1 Rules concerning all contested cases

(a) In addition to any authority granted in the Uniform Administrative Procedure Rules (UAPR), N.J.A.C. 1:1, the judge shall have the authority to:

1. Administer oaths and to require testimony under oath, pursuant to N.J.S.A. 5:12-107.a(3);

2. Serve process either personally or by certified mail and serve notices by certified mail, pursuant to N.J.S.A. 5:12-108;

3. Issue subpoenas and compel the attendance of witnesses at any place within this State, pursuant to N.J.S.A. 5:12-107.f and 5:12-108.f;

4. Take official notice of any generally accepted information or technical or scientific matter in the field of gaming and of other fact which may be judicially noticed by the courts of this State, pursuant to N.J.S.A. 5:12-107(b); and

5. Permit the filing of amended or supplemental pleadings, pursuant to N.J.S.A. 5:12-107(b).

(b) In addition to any rights granted in the UAPR, the parties shall have the right to:

1. Call and examine witnesses, pursuant to N.J.S.A. 5:12-107(a)4;

2. Introduce exhibits relevant to the issues of the case, including the transcript of the testimony at any investigative hearing conducted by or on behalf of the Casino Control Commission (Commission), pursuant to N.J.S.A. 5:12-107(a)4;

3. Cross-examine opposing witnesses in any matters relevant to the issue of the case, pursuant to N.J.S.A. 5:12-107(a)4;

4. Impeach any witness, regardless of which party called him to testify pursuant to N.J.S.A. 5:12-107(a)4;

5. Offer rebuttal evidence, pursuant to N.J.S.A. 5:12-107(a)4; and

6. Stipulate and agree that certain specified evidence may be admitted although such evidence may be otherwise subject to objection, pursuant to N.J.S.A. 5:12-107(a)(7).

(c) In any contested case, the Commission shall have the authority to:

Grant testimonial immunity, pursuant to N.J.S.A. 52:12-107.g; and

2. Certify contempt for punishment by the Superior Court, pursuant to N.J.S.A. 5:12-107(c).

History

• Amended by 47 N.J.R. 2263(a), effective 9/8/2015

Subchapter 15 EVIDENCE RULES

N.J. Admin. Code § 1:19-15.1 Special evidence rules

(a) The following special rules of evidence shall apply:

1. Any relevant evidence, not subject to a claim of privilege, may be admitted regardless of any rule of evidence which would bar such evidence in judicial matters, pursuant to N.J.S.A. 5:12-107.a(6);

2. Evidence admitted pursuant to (a)1 above shall be sufficient in itself to support a finding, pursuant to N.J.S.A. 5:12-70.b and 107.a(6); and

3. If an applicant, licensee, registrant or person who shall be qualified pursuant to the Casino Control Act is a party and if such party shall not testify in his own behalf, he may be called and examined as if under cross-examination, pursuant to N.J.S.A. 5:12-107a(5).

History

• Amended by 47 N.J.R. 2263(a), effective 9/8/2015

Chapter 20 HEARINGS BEFORE THE PUBLIC EMPLOYMENT RELATIONS APPEAL BOARD

Subchapter 1 APPLICABILITY

N.J. Admin. Code § 1:20-1.1 Applicability

The rules in this chapter shall apply to any hearing initiated before the Public Employment Relations Commission Appeal Board pursuant to P.L. 1979, c.477 (N.J.S.A. 34:13A-5.5 et seq.). Any aspect of the hearing not covered by these special hearing rules shall be governed by the Uniform Administrative Procedure Rules (U.A.P.R.) contained in N.J.A.C. 1:1. To the extent that these rules are inconsistent with the U.A.P.R., these rules shall apply.

Subchapter 2 DEFINITIONS

N.J. Admin. Code § 1:20-2.1 Definitions

(a) "Appeal Board" means the Public Employment Relations Commission Appeal Board established by N.J.S.A. 34:13A-5.6 to consider complaints concerning the amount of fees paid by nonmembers who pay a representation fee in lieu of dues.

(b) "Demand and return system" means the procedure established and maintained pursuant to N.J.S.A. 34:13A-5.6 by a majority representative to provide a public employee who pays a representation fee in lieu of dues the right to demand and receive from the majority representative that portion of the fee returnable under the circumstances as described by N.J.S.A. 34:13A-5.5(c).

(c) "Employer" means, for purposes of these rules only, the public employer which is signatory to the agreement requiring payment by the petitioner nonmember of representation fee in lieu of dues.

(d) "Nonmember" means a public employee who is not a member of the majority representative which represents the employee's collective negotiations unit but who pays a representation fee in lieu of dues to the majority representative.

(e) "Petition" means the document described in N.J.A.C. 1:20-6 and which initiates a complaint before the Appeal Board about the amount of representation fee in lieu of dues.

(f) "Petitioner" means the nonmember who is filing a petition.

(g) "Representation fee" means the fee in lieu of dues defined in N.J.S.A. 34:13A-5.5, deducted from a nonmember's wages or salary and paid to the majority representative of the nonmember's unit.

(h) "Respondent" means the majority representative which represents the petitioner's collective negotiations unit and which receives petitioner's representation fee.

Subchapter 3 COMMENCEMENT OF PROCEEDING

N.J. Admin. Code § 1:20-3.1 Commencement of proceeding before the Appeal Board

A nonmember may initiate a proceeding before the Appeal Board to review the amount of a representation fee in lieu of dues by filing a petition with the Appeal Board pursuant to this chapter.

N.J. Admin. Code § 1:20-3.2 Who may commence a proceeding before the Appeal Board

A petition may be filed by any nonmember public employee who pays a representation fee in lieu of dues to a majority representative. Neither a public employer nor a majority representative may file a petition.

Subchapter 6 PLEADINGS

N.J. Admin. Code § 1:20-6.1 Time for filing of petition; exhaustion of demand and return system

(a) At any time after the nonmember has exhausted, or has made a good faith attempt to exhaust, the demand and return system required to be maintained by the majority representative, the nonmember may file a petition with the Appeal Board.

(b) If during the administrative processing of the petition of appeal, it is determined that the majority representative's demand and return system has either not been utilized to resolve the dispute or that the demand and return proceeding has not been completed, the Appeal Board may take whatever action it deems appropriate, including but not limited to dismissing the petition of appeal, staying the proceedings before the Board pending the completion of the majority representative's demand and return system, or continue to process the petition.

(c) A nonmember of a majority representative who has a claim pending in the majority representative's demand and return system may intervene in a proceeding before the Appeal Board involving the same majority representative, collective negotiations agreement, public employer and the same period of time, notwithstanding that the nonmember has not yet exhausted the majority representative's demand and return system.

N.J. Admin. Code § 1:20-6.2 Time for filing answer

No later than 20 days from the date of service of the petition upon the respondent by the petitioner, the respondent shall file with the Appeal Board and serve upon the petitioner an answer to the petition. For good cause, the Appeal Board may extend the time for answer. Failure to file and serve an answer on time may result in a default judgment against the respondent.

N.J. Admin. Code § 1:20-6.3 Contents of petition

(a) A petition shall be in writing and signed by the nonmember(s) making the complaint. More than one nonmember in the same negotiations unit may sign a petition.

(b) A blank form for filing such a petition will be supplied upon request. Requests shall be addressed to: Public Employment Relations Commission Appeal Board, 429 East State Street, Trenton, NJ 08608.

(c) The petition shall contain the following:

1. The full name, address and telephone number of the nonmember filing the petition and, where applicable, the name, address and telephone number of any authorized representative;

2. The full name and address of the majority representative of the nonmember's collective negotiations unit;

3. The full name and address of the public employer of the nonmember filing the petition;

4. The amount of the representation fee in lieu of dues and, where known, the amount of the regular membership dues, initiation fees and assessments charged by the majority representative to its own members;

5. A statement of the grounds for the nonmember's belief that the representation fee in lieu of dues is excessive or improper, including a brief recitation of the facts, if any, which give rise to the belief that the fee is excessive. It shall be sufficient for the petitioner to state opposition either to all expenditures of a political or ideological nature only incidentally related to the terms and conditions of employment, or to expenditures applied toward the costs of any benefits available only to members of the majority representative, or to both; and

6. A statement as to whether the nonmember filing the petition has exhausted the majority representative's demand and return system and the result of that proceeding. If the result of that proceeding was in written form, a copy of the writing should be appended to the petition.

N.J. Admin. Code § 1:20-6.4 Contents of answer

(a) An answer shall be in writing and signed by a representative of the respondent.

(b) An answer shall contain the following:

1. A statement of the amount of the regular membership dues, initiation fees and assessments charged by the majority representative to its own members in the petitioner's collective negotiations unit;

2. A statement of the representation fee in lieu of dues charged the petitioner;

3. A description of the disposition of the petitioner's demand and return system proceeding. A copy of any written decision or result of that proceeding shall be appended as an exhibit to the answer, unless it has been appended to the petition;

4. A clear and concise statement which specifically admits, denies or explains any factual allegations contained in the petition; and

5. Any affirmative defenses to the legal and factual allegations of the petition.

(c) Attached to the answer shall be:

1. A copy of the collective negotiations agreement or other written agreement with the public employer of the petitioner which provides for the payment of the representation fee in lieu of dues; and

2. A copy of the demand and return procedures established by the majority representative.

Subchapter 7 SERVICE, FILING AND POSTING OF PETITION

N.J. Admin. Code § 1:20-7.1 Filing of petition and copies

A petitioner shall file an original and four copies of the petition with the Appeal Board.

N.J. Admin. Code § 1:20-7.2 Service of petition upon majority representative

Upon filing of a petition, the petitioner shall serve a copy of the petition and any attached documents upon the respondent named in the petition. The petitioner shall file a proof of service with the Appeal Board.

N.J. Admin. Code § 1:20-7.3 Petition to public employer

Upon receipt of a petition, the Appeal Board shall forthwith provide a copy of the petition to the public employer.

History

• Administrative correction.
• See: 40 N.J.R. 5195(a).

N.J. Admin. Code § 1:20-7.4 Filing of answer and copies

(a) The respondent shall file an original and four copies of the answer with the Appeal Board.

(b) The respondent shall file two copies of the documents required by N.J.A.C. 1:20-6.4(c).

N.J. Admin. Code § 1:20-7.5 Service of answer upon petition

Upon filing the answer, the respondent shall serve a copy of the answer and of the documents required by N.J.A.C. 1:20-6.4(c) upon the petitioner. The respondent shall file proof of service with the Appeal Board.

Subchapter 8 TRANSMISSION OF CASES

N.J. Admin. Code § 1:20-8.1 Transmission of cases to the Office of Administrative Law

In addition to the completed transmittal form, two copies of the petition and answer and other appropriate papers, the Appeal Board shall transmit to the Office of Administrative Law copies of the parties' proof of service of the petition and answer.

Subchapter 9 NOTICES

N.J. Admin. Code § 1:20-9.1 Notice of filing; employer posting

(a) In addition to the requirements of N.J.A.C. 1:1-9.4(a), a copy of the notice of filing shall be sent by the Office of Administrative Law to the public employer of the petitioner.

(b) The public employer shall post such notice at locations where notices to employees in the petitioner's collective negotiations unit are normally posted. The notice shall remain posted for a period of 30 days.

Subchapter 14 CONDUCT OF CASES

N.J. Admin. Code § 1:20-14.1 Nature of hearing

The hearing shall be a plenary de novo proceeding.

N.J. Admin. Code § 1:20-14.2 Burden of proof

Pursuant to N.J.S.A. 34:13A-5.6, the burden of proof shall be on the majority representative.

Subchapter 15 EVIDENCE

N.J. Admin. Code § 1:20-15.1 Evidence of demand and return proceedings

The record, or any portion of it, developed at the demand and return system proceeding may be introduced as evidence by either party, subject to the general rules of evidence contained in N.J.A.C. N.J.S.A. 1:1-15.

Subchapter 18 CONCLUSION OF HEARING

N.J. Admin. Code § 1:20-18.1 Oral argument on exceptions

(a) As part of any written exceptions to an initial decision, a party may file a written request for oral argument on the exceptions before the Appeal Board. The written request shall be served, along with the exceptions, upon the other parties to the hearing.

(b) If the Appeal Board grants the request for oral argument, the Appeal Board shall give each party at least five days notice of the date of the argument.

(c) Only issues and evidence of record at the hearing may be considered at the oral argument. No new issues or evidence may be presented.

N.J. Admin. Code § 1:20-18.2 Motion to reopen

A party to a proceeding before the Appeal Board may, because of extraordinary circumstances, move to reopen the matter after the Appeal Board decision has been rendered. The movant shall state with particularity the grounds claimed and, where applicable, shall specify the portion of the record relied upon. Any motion pursuant to this section shall be filed within 15 days after service of the Appeal Board decision. Copies shall be served on the parties of record, and a statement of service shall be filed with the motion papers. The filing and pendency of a motion for reconsideration shall not operate to stay the effectiveness of the Appeal Board decision unless otherwise ordered by the Appeal Board. A motion to reopen need not be filed to exhaust administrative remedies.

Chapter 21 TRADE SECRET CLAIMS

Subchapter 1 APPLICABILITY

N.J. Admin. Code § 1:21-1.1 Applicability

The rules in this chapter shall apply to any hearing concerning the validity of a trade secret claim. Any aspect of the hearing not covered by these special hearing rules shall be governed by the Uniform Administrative Procedure Rules (U.A.P.R.) contained in N.J.A.C. 1:1. To the extent that these rules are inconsistent with the U.A.P.R., these rules shall apply.

History

• Amended by R.1992 d.213, effective 5/18/1992.
• See: 24 New Jersey Register 321(a), 24 New Jersey Register 1873(b).
• Revised text.

Subchapter 8 TRANSMISSION OF CASES TO THE OFFICE OF ADMINISTRATIVE LAW

N.J. Admin. Code § 1:21-8.1 Transmission of cases; the trade secret documentation or information

When a case is transmitted to the Office of Administrative Law involving a trade secret claim, any information or documentation which reveals the trade secret shall not be transmitted with the case file.

History

• Amended by R.1992 d.213, effective 5/18/1992.
• See: 24 New Jersey Register 321(a), 24 New Jersey Register 1873(b).
• Revised text.

N.J. Admin. Code § 1:21-8.2 Custody of the trade secret information or documentation; no copying

(a) Any information or documentation which reveals the trade secret shall remain throughout the hearing in the physical custody of the representatives of the transmitting agency.

(b) When needed, upon the judge's direction, the trade secret information or documentation shall be brought to the hearing by the responsible department representatives.

(c) The trade secret information or documentation shall not be placed in the Office of Administrative Law case file and may not be copied by any Office of Administrative Law personnel.

(d) The trade secret information shall not be communicated over telecommunication networks, including but not limited to: telephones, computers connected by modems, or electronic mail systems.

(e) The judge may, when necessary for the performance of his or her functions, disclose the trade secret information to his or her secretary.

History

• Amended by R.1992 d.213, effective 5/18/1992.
• See: 24 New Jersey Register 321(a), 24 New Jersey Register 1873(b).
• Revised (a).

Subchapter 10 DISCOVERY

N.J. Admin. Code § 1:21-10.1 Discovery in trade secret cases

(a) When necessary to prevent the trade secret from being disclosed without authorization, the judge may order:

1. That the requested discovery not be had;

2. That the discovery may be had only on specified terms and conditions, including a designation of the time or place;

3. That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

4. That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;

5. That discovery be conducted with no one present except persons designated by the judge;

6. That a deposition after being sealed be opened only by order of the judge;

7. That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the judge; or

8. Any other device which reasonably balances the discovery goal of minimizing surprise at hearings with the need to protect the trade secret from an unauthorized disclosure.

Subchapter 12 MOTIONS

N.J. Admin. Code § 1:21-12.1 Written motions

Written motions shall be made directly to the judge.

History

• Amended by R.1992 d.213, effective 5/18/1992.
• See: 24 New Jersey Register 321(a), 24 New Jersey Register 1873(b).
• Revised text.

Subchapter 14 CONDUCT OF TRADE SECRET CASE

N.J. Admin. Code § 1:21-14.1 Sound recordings; safeguarding the case file and sound recordings; preparation of transcripts

(a) Court reporters will not be provided for trade secret hearings. A verbatim record will be maintained by sound recording.

(b) When not in use, all audio tapes and case files together with all evidence and other related case materials, including any transcripts, shall be locked in an Office of Administrative Law filing cabinet in a locked room, whether or not particular tapes, case files, evidence or related materials include secret testimony or argument. Access to the file cabinet shall be limited to judges and their secretaries. Access to the locked room shall be restricted to a person or persons designated by the Director in writing. A record of access to the file cabinet shall be maintained by the designated persons.

(c) No duplicates or copies of any portion of an audio tape containing secret information shall be permitted.

(d) Upon the request of a person who is authorized by the judge to receive a transcript, the judge's secretary shall prepare a transcript of that portion of the hearing dealing with the secret information. A transcribing firm may be authorized to prepare a transcript of that portion of the hearing not dealing with the secret information.

N.J. Admin. Code § 1:21-14.2 Sealing the record

(a) On the last day of the evidentiary hearing, the parties shall be given the opportunity to address the record sealing requirements of the case. The record shall be sealed by order attached to the initial decision in every trade secret case.

(b) In rendering a sealing order, the judge shall consider the extent of restriction necessary to safeguard the trade secret and shall determine in each such order:

1. That the Office of Administrative Law shall not maintain a duplicate case file after the initial decision has been provided to the parties and agency head; and

2. That all documents transmitted to the Office of Administrative Law together with all evidence received at the hearing and all audio tapes or transcripts, if any, shall be returned to the transmitting agency with the initial decision; and

3. That all requests for transcripts prior to the initial decision shall be directed to the judge and that all requests for transcripts after the initial decision shall be directed to the transmitting agency; and

4. Whether any portions of the audio tapes of the proceeding may not be transcribed or whether other means of safeguarding the trade secret can be utilized when preparing a transcript; and

5. The names of persons who are authorized to request a transcript; and

6. Whether the entire initial decision, transcript, audio tapes, evidence and other related case materials or any part thereof must be marked "CONFIDENTIAL" and distributed by hand or certified mail in a plain envelope addressed only to a person authorized to receive the secret information; and

7. Whether the initial decision or any part thereof may be made available to the public in any agency's library.

N.J. Admin. Code § 1:21-14.3 Exceptions to the public hearing policy

When necessary to prevent the trade secret from being disclosed without authorization, the judge may make an exception to the public hearing requirements of N.J.A.C. 1:1-14.1 and he or she may close the hearing, or any part thereof, and exclude witnesses, or, if necessary, parties from portions of the hearing.

Subchapter 18 INITIAL DECISIONS; RETURNING THE CASE TO THE TRANSMITTING AGENCY

N.J. Admin. Code § 1:21-18.1 Delivery of initial decisions, transcripts, audio tapes, evidence and other related case materials

(a) Unless the judge otherwise directs in the record sealing order (see N.J.A.C. 1:21-14.2), the parties to the case and the transmitting agency or their designated representatives will be telephoned and asked to pick up the initial decision at the judge's chambers at the Office of Administrative Law. The indicated date of receipt by the agency head, as required by N.J.S.A. 52:14B-10(c), shall be the second day after the Office of Administrative Law telephones the transmitting agency.

(b) Unless the judge otherwise directs in the record sealing order, the transmitting agency will be telephoned and asked to pick up at the Office of Administrative Law the transcript, if any, audio tapes, evidence and other related case materials on the same date it is requested to pick up the initial decision.

(c) After returning the case to the transmitting agency, the Office of Administrative Law may maintain in the Clerk's file only the transmittal form, the notices of filing and hearing and the order sealing the record.

Chapter 30 RULES FOR AGENCY RULEMAKING

Subchapter 1 GENERAL PROVISIONS

N.J. Admin. Code § 1:30-1.1 Short title

The provisions of this chapter shall be known as "The rules for agency rulemaking."

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-1.2 Definitions

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

"Act" means the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq.

"Administrative correction or change" means a correction or change to the text of a rule without formally promulgating the amendment (see N.J.A.C. 1:30-2.7).

"Adopt" means the action whereby a rule is officially approved and authorized for promulgation by an adopting agency.

"Adopting agency" means that agency authorized by law to conduct a rulemaking proceeding.

"Agency" or "State agency" is defined in N.J.S.A. 52:14B-2(a).

"Adopting agency head" means either that person designated by statute as authorized to promulgate rules, or the principal executive officer or an authorized adopting agency.

"Amend" means to modify, alter, revise, or suspend the operative effect of a previously promulgated rule.

"Appendix" means any collateral material that serves to clarify, illustrate, or explain a rule.

"Code" means the New Jersey Administrative Code, published pursuant to N.J.S.A. 52:14B-7(a).

"Codify" means to devise, pursuant to N.J.S.A. 52:14B-7(f), the form in which rules are published to achieve a logical and consistent arrangement of the provisions.

"Director" means the Director of the Office of Administrative Law.

"Division of Administrative Rules" means that Division of the Office of Administrative Law to which documents shall be submitted for publication in the New Jersey Register; that reviews such documents for compliance with this chapter and the Act; that maintains permanent records concerning rule promulgation; and that provides assistance to agencies concerning the preparation, consideration, publication, and interpretation of rules.

"Document" means any writing submitted to the Office of Administrative Law by an agency for the purpose of filing, publishing, or other processing pursuant to law. The singular of this term refers to the entirety of each writing although such writing establishes or affects more than one rule or subject matter, or consists of more than one page or part.

"Effective" means that a rule, pursuant to the Constitution, the Act and this chapter, has been duly adopted, filed with the Office of Administrative Law, and in the case of a new rule, amendment, or repeal, promulgated in the New Jersey Register. A readoption is effective upon timely filing with the OAL.

"Electronic mailing list" means a computer program that allows agency website visitors, at their discretion, to subscribe to, or unsubscribe from, an e-mail discussion group or e-mail mailing list controlled by the agency, and which program enables the agency to automatically send e-mail messages to multiple e-mail addresses on the user-generated subscriber list.

"Emergency adoption" means the promulgation of an amendment, repeal, or new rule without public comment in response to an imminent peril to the public health, safety, and welfare (see N.J.S.A. 52:14B-4(c) and N.J.A.C. 1:30-6.5).

"Executive Order No. 27 (1994)" means the 27th executive order issued by Governor Whitman in 1994. Commonly referred to as the "Federal standards" provision, the executive order requires a statement or analysis as to whether a rule exceeds standards or requirements imposed by Federal law. Federal law includes statutes, rules, regulations, orders, directives, or guidelines.

"Exempt agency" means any agency excluded from the requirements of the Act because it does not meet the definition of "agency" in N.J.S.A. 52:14B-2(a).

"Exempt rule" means any rule of an exempt agency or a rule of a non-exempt agency that, pursuant to N.J.S.A. 52:14B-5.1(e), does not require an expiration date.

"File" means the action whereby a copy of a document is received by the Division of Administrative Rules; notated with the date of receipt; entered into the registry; and thereafter accepted for publication by the Director. All documents accepted for publication shall be considered filed as of the date of receipt.

"Intra-agency statement" means a communication between members of a single agency that does not substantially impact upon the rights or legitimate interests of the regulated public.

"Inter-agency statement" means a communication between separate agencies that does not substantially impact upon the rights or legitimate interests of the regulated public.

"Joint proposal and joint adoption" is the process by which two or more agencies, with concurrent or complementary jurisdiction, jointly propose and adopt identical rules, at the same time. The process may be mandated by legislation or voluntarily initiated, where appropriate.

"Negotiating a rule" means the process whereby an agency requests, and the OAL provides a representative to conduct a preliminary, non-adversarial proceeding with respect to a contemplated rulemaking proceeding, and which results in a rule presented to the "adopting agency" head in the form required by N.J.A.C. 1:30-5.1.

"Notice of adoption" means that document described in N.J.A.C. 1:30-6.1, which must be submitted to the Office of Administrative Law for filing and then published in the New Jersey Register to give legal effect to a proposed rulemaking.

"Notice of petition for rulemaking" means that document described in N.J.A.C. 1:30-4.1, which must be submitted to the Office of Administrative Law for publication in the Register when a request for agency rulemaking action is made by an interested person, pursuant to N.J.S.A. 52:14B-4(f).

"Notice of pre-proposal" means that document described in N.J.A.C. 1:30-5.3, which must be submitted to the Office of Administrative Law for publication in the New Jersey Register, when an agency determines to conduct, pursuant to N.J.S.A. 52:14B-4(e), a preliminary proceeding with respect to a contemplated rulemaking proceeding or when, pursuant to N.J.A.C. 1:30-5.3, a pre-proposal shall be submitted.

"Notice of proposal" means that document described in N.J.A.C. 1:30-5.1, which must be submitted to the Office of Administrative Law for filing and then published in the New Jersey Register and distributed to the Legislature and interested persons.

"OAL" means the New Jersey Office of Administrative Law, which is in, but not of, the Department of the Treasury.

"Operative" means that the adopting agency shall enforce and the affected public shall obey the terms of an effective rule. Unless otherwise specified in the rule or notice of adoption of the rule, a rule becomes operative when effective.

"Organizational rule" means a rule promulgated pursuant to N.J.S.A. 52:14B-3(l), including a description of the structure of the agency; the persons from whom and places from which information, applications, and other forms may be obtained; and the persons to whom and places to which applications, requests, and other submissions may be made.

"Person" means any natural individual, association, board, venture, partnership, corporation, organization, institution, and governmental instrumentality recognized by law for any purpose whatsoever.

"Pre-proposal" means a preliminary proceeding for the purpose of eliciting ideas, views, and comments of interested persons on a contemplated rulemaking proceeding, pursuant to N.J.A.C. 1:30-5.3(b). This preliminary proceeding precedes the filing of a formal rule proposal.

"Promulgate" means to proclaim officially in the Register and thereby render effective a new rule, amendment, or repeal that was duly adopted by an agency and filed with the Office of Administrative Law.

"Propose" means the action whereby an adopting agency submits a notice of proposed rule to the Office of Administrative Law for filing and publication by the Director.

"Public hearing" means a legislative type proceeding conducted either as part of a rulemaking or to consider a possible rulemaking that affords the public an opportunity to present to the promulgating agency oral and written comments, arguments, data, and views on the rulemaking or the contemplated rulemaking.

"Readopt" means to conduct a rulemaking proceeding for the purpose of continuing in effect an emergency rule that would otherwise expire pursuant to N.J.S.A. 52:14B-4(c)(see N.J.A.C. 1:30-6.5), or a rule that expires pursuant to N.J.S.A. 52:14B-5.1(see N.J.A.C. 1:30-6.4). In a rulemaking proceeding to readopt a rule, the rule continues in effect upon the timely filing of the notice of adoption with the Office of Administrative Law.

"Register" means the "New Jersey Register" published pursuant to N.J.S.A. 52:14B-7(b).

"Registry" means the serial list of documents submitted for filing with the Director.

"Repeal" means to conduct a rulemaking proceeding to declare void a rule, the effect of which is to terminate the legal effect of such rule prospectively only. Any rule so terminated shall continue thereafter to be enforced in and applied to all proceedings, formal or otherwise, initiated pursuant to rule or to law prior to the effective date of such repeal.

"Rule" or "administrative rule" is defined in N.J.S.A. 52:14B-2(e). For purposes of determining effective dates, there are five types of rules: new rules, amendments, repeals, readoptions, and emergency rules.

"Rule activity" means any agency action with respect to a rule authorized or required by the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and including a petition for a rule, a pre-proposal for a rule, and rulemaking proceeding.

"Rulemaking proceeding" means those steps that shall be followed pursuant to the Act and this chapter, for a rule to be validly promulgated, and which include the procedures for proposal of a rule, N.J.A.C. 1:30-5, the proper adoption of a rule, and the procedures upon adoption of a rule, N.J.A.C. 1:30-6.

"Signature of agency head" shall include the actual, physical signature of the agency head, the prior-approved stamp or electronic signature, or the submission of a notice for publication through an e-mail address approved by the agency for the purpose of submitting notices approved by the agency head to the OAL.

"URL address" means a Uniform Resource Locator address, that is used for the purposes of Internet navigation and is commonly referred to as a website link, and which uses a protocol, such as "http", and a domain name to identify, and provide website visitors with direct access to, a particular Internet file or website page.

History

• Amended by47 N.J.R. 1311(b), Effective 6/15/2015

N.J. Admin. Code § 1:30-1.3 Offices

(a) The Division of Administrative Rules, Office of Administrative Law, is located at Quakerbridge Plaza, Building No. 9, PO Box 049, Quakerbridge Road, Trenton, New Jersey 08625-0049.

(b) Hours during which documents may be submitted or reviewed are from 9:00 A.M. to 3:00 P.M., Monday through Friday, except for State holidays.

(c) Information may be obtained by telephoning the following for:

1. Rulemaking information (609) 689-4012;

2. Document filings (609) 689-4012; and

3. Administrative Code research (609) 689-4012.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-1.4 Citations to the Code

(a) The New Jersey Administrative Code shall be cited as "N.J.A.C."

(b) The citation of a particular section of the New Jersey Administrative Code shall include the numerical designations of the title, chapter, subchapter, and section referred to, preceded by the initials N.J.A.C. As an example, this section would be cited as N.J.A. C. N.J.A.C. 1:30-1.4.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-1.5 Citations to the Register

(a) The New Jersey Register shall be cited as "N.J.R."

(b) The citation to material appearing in the New Jersey Register shall include the volume number, page number and item letter, the volume, and page numbers being separated by the initials, "N.J.R." As an example, the second item of page 20 of the January 3, 1995 issue would be cited as 27 N.J.R. 20(b).

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-1.6 Statutory citations in the Code

Statutory citations will be "N.J.S.A.", the New Jersey Statutes Annotated. This is for the convenience of the public, but the official copy of any statute will be found in the State's unpublished compilation of statutes or in the published pamphlet laws

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-1.7 Use of headings

Title, subtitle, chapter, subchapter, section, article, group, part, and division headings contained in the Register or Code are not part of the rule, but are intrinsic parts of the publication. As such, these headings may be used in interpreting the rule

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-1.8 Access to documents

(a) Every document or a copy thereof submitted to the Office of Administrative Law for filing shall be maintained on record by the Division of Administrative Rules.

(b) Any person shall, upon request, be afforded an opportunity to examine any public document maintained by the Division of Administrative Rules during business hours 9:00 A.M. to 3:00 P.M., Monday through Friday, except for State holidays.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-1.9 Copies of documents; fees

(a) Any person may obtain copies of filed documents from the Division of Administrative Rules pursuant to the provisions of N.J.S.A. 47:1A-5.b.

(b) Original filed documents shall not be released from the custody of the Office of Administrative Law.

History

• Amended by47 N.J.R. 1311(b), Effective 6/15/2015

N.J. Admin. Code § 1:30-1.10 Forms

From time-to-time the Office of Administrative Law may adopt as interagency statements the forms and formats that shall be used in rule activities.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-1.11 Reserved

History

• Repealed by R.1996 d.79, effective 2/20/1996.
• See: 27 New Jersey Register 4039(b), 28 New Jersey Register 1198(a).
• Section was "Computation of time".

N.J. Admin. Code § 1:30-1.12 Compliance

(a) Upon an initial determination by the OAL that any proposed or adopted rule, pre-proposal for a rule, or any notice is not in compliance with the technical or procedural requirements concerning rulemaking, the OAL may temporarily suspend the processing of that document. In such situations, the OAL shall contact the agency to indicate the basis for the initial determination of non-compliance. The OAL and the agency shall mutually review the initial determination. The OAL shall assist the agency in a cooperative effort to obtain compliance.

(b) Upon a determination by the Director that a proposed or adopted rule, a pre-proposal for a rule, or a notice does not satisfactorily comply with this chapter, the OAL shall not process for publication the proposed or adopted rule, pre-proposal for a rule, or any notice.

(c) If the OAL determines that there is an issue of non-compliance that concerns statutory authority, related legal issues, or contested case jurisdiction, it may refer the matter to the Office of the Attorney General for advice.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-1.13 Invalidation of rule

In the event that a proposed or adopted rule is suspended or otherwise rendered inoperative or ineffective by Court rule or ruling, by legislative action, or by Executive Order, the Office of Administrative Law shall, upon receipt of notice of the event, prepare and publish a notice in the Register and the Code, as appropriate

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-1.14 Publication filing deadlines

(a) Pursuant to N.J.S.A. 52:14B-7(c), the Director will annually issue a schedule for the filing of documents for publication in the New Jersey Register. The schedule will set forth, for each Register to be published in the following year, the issue publication date, the deadline dates for the filing of proposal and adoption notices, and the minimum 30-day and 60-day comment deadline for proposals. Notices of proposal and pre-proposal, of proposal comment period extensions and of proposal public hearings shall be filed on or before the proposal filing deadline. Other notices shall be filed on or before the adoption deadline.

(b) The filing deadline for the inclusion of a document in a particular issue of the Register is on or before 12:00 P.M. (noon) on the proposal or adoption deadline date, as appropriate, as specified in the publication schedule. Documents filed after the deadline will be included in the filed-for Register issue at the discretion of OAL. OAL's decision to include a late-filed document will be based upon the length and anticipated complexity of the document, the volume and anticipated complexity of documents timely filed, and availability of staff. Once a determination is made as to the Register issue in which a late-filed document will be published, OAL shall so advise the agency.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-1.15 Filing of a document

(a) Upon receipt of a document for filing, there shall be electronically added to the header of the document: the date received, the Register publication the document is filed for, and the proposal or adoption document number, as applicable.

(b) All proposals shall be assigned a proposed rule number (PRN) and all adoptions shall be assigned a rule document number (R.d.) by the Division of Administrative Rules.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

Subchapter 2 RULEMAKING GENERALLY

N.J. Admin. Code § 1:30-2.1 Clarity of rules

(a) In order to be accepted for filing, a document shall be written in a reasonably simple and understandable manner that is easily readable.

1. The document shall be drafted to provide adequate notice to:

i. Affected persons; and

ii. Interested persons with some subject matter expertise.

2. The document shall conform to commonly accepted principles of grammar.

The document shall contain sentences that are as short as practical, and be organized in a sensible manner.

The document shall not contain double negatives, confusing cross references, convoluted phrasing, or unreasonably complex language.

5. Terms of art and words with multiple meanings that may be misinterpreted shall be defined.

6. The document shall be sufficiently complete and informative as to permit the public to understand accurately and plainly the legal authority, purposes, and expected consequences of the adoption, readoption, or amendment of the rule.

(b) Any rule activity or notice that does not comply with the standard of clarity set forth in (a) above shall be subject to the provisions of N.J.A.C. 1:30-1.12.

(c) The provisions of (a) above shall not apply to any administrative rule that a State agency adopts to conform to a model code, Federal rule, interstate agreement, or other similar regulatory measure not written by the State agency but incorporated into an administrative rule. The State agency shall include in the Summary of the notice of proposal for such rule, a description of the rule, which complies with (a) above. For a regulatory measure incorporated by reference, as amended and supplemented, into a rule, in accordance with N.J.A.C. 1:30-2.2(c)1 ii, the requirement for a notice of proposal Summary description in compliance with (a) above shall apply only to the notice of proposal in which the initial incorporation by reference was proposed.

(d) The Governor may, upon written request of a State agency, waive the requirements of this section with respect to the readoption, without amendment, of any rule or provision of a rule.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-2.2 Incorporation by reference

(a) Specifically designated sections of the following sources may be incorporated into a rule by reference:

1. New Jersey Statutes Annotated;

2. United States Code;

3. New Jersey Session Laws;

4. Code of Federal Regulations;

5. Federal Register;

6. Any uniform system of accounts published by the National Association of Regulatory Utility Commissioners;

7. Any generally available standard published by any of the standardizing organizations listed in the National Bureau of Standards Special Publication 417, Director of United States Standardization Activities or supplements thereto or reissues thereof; or

8. Any other generally available publication approved by the Director.

(b) Any section of a source incorporated by reference shall be made available for public inspection by the adopting agency and shall be available in printed form from the adopting agency or the original source for a reasonable fee.

(c) Any agency incorporating any section of a source by reference shall adopt and file as a rule appropriate language indicating:

1. What is incorporated including either:

i. The specific date or issue of the section of the source incorporated; or

ii. A statement indicating whether the section incorporated includes future supplements and amendments.

2. Where and how a copy of the section may be obtained.

(d) Where a State agency rule elaborates on, or summarizes or paraphrases a State or Federal statute or Federal regulation, the rule shall contain a citation of or reference to that statute or regulation.

History

• Amended by R.2001 d.52, effective 2/5/2001.
• See: 32 New Jersey Register 3885(a), 33 New Jersey Register 549(a).
• Deleted former (d) and recodified former (e) as (d).

N.J. Admin. Code § 1:30-2.3 Single subject for each section

Each proposed or adopted section shall embrace but one subject, and that shall be expressed in the section heading.

History

• Amended by R.1996 d.79, effective 2/20/1996.
• See: 27 New Jersey Register 4039(b), 28 New Jersey Register 1198(a).

N.J. Admin. Code § 1:30-2.4 Authorization for rule activity

(a) A notice of adoption shall be signed by the adopting agency head, or any other person authorized by statute.

(b) A notice of proposed rule or any other rule activity shall be signed either by:

1. The adopting agency head; or

2. By an agency employee who has been duly authorized by the agency head to propose rules, and for whom a written authorization signed by the agency head has been submitted to the Office of Administrative Law.

(c) Any rulemaking submitted to the OAL by a previously approved e-mail address (see definition of "signature of agency head") shall be deemed authorized for purposes of this section.

(d) Any rule activity not properly authorized shall be returned to the agency.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-2.5 Effect of statement for proposed rule

The statements for a proposed rule (N.J.A.C. 1:30-5.1(c) ) and for any change upon adoption of a rule (N.J.A.C. 1:30-6.1(b)12 through 15) are not part of the rule, but are intrinsic parts of the proposal and adoption as published in the Register. As such, these statements may be used in interpreting the rule.

History

• Amended by R.2001 d.52, effective 2/5/2001.
• See: 32 New Jersey Register 3885(a), 33 New Jersey Register 549(a).
• Amended the N.J.A.C. references.
• Amended by R.2001 d.193, effective 6/4/2001 (operative July 1, 2001).
• See: 33 New Jersey Register 915(a), 33 New Jersey Register 1927(a).
• Amended N.J.A.C. references throughout section.

N.J. Admin. Code § 1:30-2.6 Official copy of proposed, adopted, and promulgated rule

(a) The Register constitutes the authoritative text of any notice printed therein.

(b) The full text printed in the Register of any proposed rule, adopted rule, or any change made upon adoption of a proposed rule, constitutes the authoritative text of that proposed rule, adopted rule, or change. An official copy of the text printed in the Register shall be kept on file by the OAL.

(c) Where the full text of an adopted rule is not printed in the Register, the full text of the proposed rule printed in the Register, plus the full text of any change printed in the Register upon adoption, constitutes the authoritative text of the adopted and promulgated rule. An official copy of the text printed in the Register shall be kept on file by the OAL.

(d) Where the full text of any proposed rule, adopted rule, or change is not printed in the Register, the authoritative text is the copy submitted by the adopting agency and kept on file by the Office of Administrative Law.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-2.7 Administrative corrections and changes

(a) Upon being advised in writing by an agency or upon its own initiative, with notice to the appropriate agency, the OAL may make an administrative correction or change to any rule published in the New Jersey Register or New Jersey Administrative Code. An administrative correction or change shall be effective upon filing with the OAL.

(b) An administrative correction may be made to correct an error that is obvious, easily recognizable, or apparent to the promulgating agency and the regulated public. An administrative correction may be made to conform a proposed or adopted rule to the intent of the agency as expressed in the proposal or adoption statements. Administrative corrections may be made to correct any part of a rule including, but not limited to, its text, spelling, grammar, punctuation, codification, and cross-references.

(c) An administrative change may be made to recodify a rule. Administrative changes may also be made to amend a rule to provide the public with notice of nonregulatory changes that have occurred since the rule was adopted. Administrative changes may include, but are not limited to, changes in:

1. Names of departments, agencies, divisions, and bureaus;

2. Titles of specific individuals; and

3. Addresses, phone numbers, and business hours.

(d) An administrative correction or change shall not be used to adjust the text of a rule to subsequent changes in circumstance or policy decisions.

(e) A notice of administrative correction or change shall be published in the New Jersey Register. The administrative correction or change with appropriate annotation shall be included in a subsequent supplement to the New Jersey Administrative Code.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-2.8 Appendices

(a) Appendices shall include only material that clarifies, illustrates, or explains a rule. An appendix may include, but is not limited to, the following:

1. Technical requirements or specifications;

Instructions;

Formulae;

4. Forms;

5. Examples of hypothetical cases;

6. Reprints of regulations, statutes, forms, etc., which originate elsewhere;

Lists of offices, their addresses and hours of business; and

8. Analyses or explanatory material regarding a rule, which may contain a rationale or derivation of the rule.

(b) Any material, such as, but not limited to, that in (a)1 through 8 above, which is non-regulatory may be included in an appendix and cross-referenced in the text of a rule.

(c) Any material, such as, but not limited to, that listed in (a)1 through 8 above, which is regulatory may be included in an appendix, as long as the appendix is incorporated by reference in the text of a rule. Any amendment to the appendix shall, therefore, be through rulemaking.

(d) The Office of Administrative Law shall, pursuant to N.J.S.A. N.J.S.A. 52:14F-5 and 52:14B-7(c) and (f), determine:

1. Whether any regulatory provisions found in an appendix shall be integrated and/or codified into the text of a rule; and

2. The location of an appendix to a rule in the New Jersey Register and the New Jersey Administrative Code; and

Whether an appendix should be published in the New Jersey Register and the New Jersey Administrative Code.

(e) This section shall be applied prospectively; however, if existing appendices or rules to which they refer are subsequently amended after August 15, 1988, those appendices and rules shall then be conformed to comply with this section.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-2.9 Organizational rule; rules of practice

(a) Each agency shall:

1. Adopt as a rule, a description of its organization, stating the general course and method of its operations and the methods whereby the public may obtain information or make submissions or requests; and

Adopt rules of practice setting forth the nature and requirements of all formal and informal procedures available, including a description of all forms and instructions used by the agency, and, if not otherwise set forth in an agency's rules, a table of all permits and their fees, violations and penalties, deadlines, processing times, and appeals procedures.

i. As used in this paragraph, "permit" means any agency license, permit, certificate, approval, charter, registration, or other form of permission required by law.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-2.10 Agency Internet website posting required

(a) Notwithstanding any law, rule, or regulation to the contrary, each agency shall post, in a visible and publicly accessible location on the agency's Internet website:

1. The complete and current text of each State law under which the agency is granted its authority, and the complete and current text of each rule that has been adopted by the agency, or that is proposed for, or is pending, agency adoption; or

2. One or more URL addresses, which provide visitors to the agency's website with a direct link to the complete and current text of the documents listed in (a)1 above.

(b) An agency shall make regular and timely updates to the full text documents and/or URL addresses posted on its Internet website pursuant to (a) above, and shall take any other reasonable action necessary to ensure that the posted documents and/or URL addresses accurately reflect, or are directly linked to, as the case may be, the most recent version of the associated law or rule, including any amendments or supplements thereto, or repeals thereof. The agency shall indicate on its Internet website, the frequency with which updates are made pursuant to this subsection.

(c) An agency that posts one or more URL addresses on its Internet website pursuant to (a) above shall additionally verify, on a regular basis, the functionality of each URL address and provide a means by which website visitors can notify the agency, through e-mail communication, or through any other reasonable means, of any nonfunctional URL address.

(d) In addition to the requirements in (a) above, each agency shall make available for public viewing, through publication on the agency's Internet website, all of the agency's rulemaking notices and rulemaking petitions received by the agency. all of the agency's rulemaking notices and rulemaking petitions received by the agency

History

• Adopted by47 N.J.R. 1311(b), Effective 6/15/2015

Subchapter 3 RULEMAKING CALENDARS

N.J. Admin. Code § 1:30-3.1 Publication of rulemaking calendars

(a) Each agency shall publish in the New Jersey Register a quarterly calendar setting forth a schedule of the agency's anticipated rulemaking notice of proposal activities for the next six months. The calendars shall be published in the first New Jersey Register for the months of January, April, July, and October and shall be filed with the OAL in accordance with the OAL publication schedule (see N.J.A.C. 1:30-1.14) on or before the filing deadline for notices of proposal.

(b) The calendar shall include:

1. The name of the agency;

2. The name of the agency head;

3. Specific citation of the rules to be affected;

4. Citation to the legal authority authorizing the rulemaking action;

5. A synopsis of the rulemaking and its objective or purpose; and

6. The month and year in which publication of the notice of proposal in the New Jersey Register is anticipated.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-3.2 Calendar amendment

(a) An agency shall notify the Director of the Office of Administrative Law when it wishes to amend its calendar of rulemaking activities. Such notice shall be in the form of a revised version of the rulemaking calendar published most recently prior to the amendment, and shall highlight the amendment, both in an explanatory statement and the appearance of the amendment text (additions in boldface, deletions in brackets) within the calendar. Notices of calendar amendment shall be filed with the OAL in accordance with the deadlines for filing notices of proposal set forth in the OAL publication schedule. An agency shall take no action on an amended rulemaking activity until at least 45 days following the first publication of the amended calendar in which the announcement of that amended rulemaking activity appears, if an amendment:

Involves the addition of any rulemaking activity to an agency's calendar;

2. Changes the anticipated month of proposal publication to an earlier month; or

3 Alters the objective, purpose, or subject matter synopsis of the rulemaking so as to change who or what shall be affected by the rulemaking and/or how they shall be affected.

(b) If a calendar amendment under (a)1, 2, or 3 above appears initially in an agency's quarterly rulemaking calendar, an agency shall take no action on that amended rulemaking activity until at least 45 days following the publication of the quarterly calendar.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-3.3 Exceptions

(a) TThe provisions of N.J.A.C. 1:30-3.1 and 3.2 shall not apply to any rulemaking:

1. Required or authorized by Federal law, when failure to adopt rules in a timely manner will prejudice the State;

2. Subject to a specific statutory authorization requiring promulgation in a lesser time period than addition to a calendar would permit;

3. Involving an imminent peril subject to provisions of N.J.S.A. 52:14B-4(c);

4. For which the agency has published a notice of pre-proposal of the rule in accordance with N.J.A.C. 1:30-5.3(b) and (c); or

5. For which a comment period of at least 60 days is provided.

(b) A proposed rule falling within any of the exceptions in (a) above shall so indicate in the Summary of notice of proposal. If the rule falls under the exception in (a)1 above, the Summary shall include the specific citation of the Federal law requiring or authorizing the rule, and an explanation as to how failure to adopt the rule in a timely manner will prejudice the State.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-3.3A Reserved

History

• Recodified as N.J.A.C. 1:30-5.5 by R.2001 d.193, effective 6/4/2001 (operative July 1, 2001).
• See: 33 New Jersey Register 915(a), 33 New Jersey Register 1927(a).
• Section was "Public hearings".

N.J. Admin. Code § 1:30-3.4 Calendar copies

(a) Each agency shall include, in that portion of its Internet website concerned with rulemaking, its rulemaking calendar and a notice of the availability of its rulemaking calendar for the fee established at (c) below. If an agency's Internet website does not feature a portion devoted to rulemaking, the calendar or notice of the availability of the rulemaking calendar shall be included in that portion of the website otherwise used for public notices and/or information.

(b) In addition to the notice under (a) above, an agency shall provide notice of the availability of its rulemaking calendar for the fee established under (c) below in the same manner as it publicizes its proposed rulemakings under N.J.A.C. 1:30-5.2(a)6.

(c) Agencies shall charge a fee for copies of their rulemaking calendars in accordance with N.J.A.C. 1:30-1.9(a).

History

• Amended by47 N.J.R. 1311(b), Effective 6/15/2015

N.J. Admin. Code § 1:30-3.5 Reserved

History

• Recodified as N.J.A.C. 1:30-5.7 by R.2001 d.193, effective 6/4/2001 (operative July 1, 2001).
• See: 33 New Jersey Register 915(a), 33 New Jersey Register 1927(a).
• Section was "Negotiating a rule".

N.J. Admin. Code § 1:30-3.6 Reserved

History

• Recodified as N.J.A.C. 1:30-4.1 and 1:30-4.2 by R.2001 d.193, effective 6/4/2001 (operative July 1, 2001).
• See: 33 New Jersey Register 915(a), 33 New Jersey Register 1927(a).
• Section was "Notice of petition for a rule".

N.J. Admin. Code § 1:30-3.7 Reserved

History

• Recodified as N.J.A.C. 1:30-5.8 by R.2001 d.193, effective 6/4/2001 (operative July 1, 2001).
• See: 33 New Jersey Register 915(a), 33 New Jersey Register 1927(a).
• Section was "Federally required rule".

Subchapter 4 PETITION FOR RULEMAKING

N.J. Admin. Code § 1:30-4.1 Notice of petition for rulemaking

(a) An interested person may petition an agency to adopt a new rule or amend or repeal an existing rule. Such petition may be submitted to an agency through mail, e-mail, or, if designed to receive messages, electronic mailing list, or through any other means.

(b) Each agency shall adopt a rule prescribing the form and procedures for the consideration and disposition of the petition. The petition shall state clearly and concisely: the substance or nature of the rulemaking that is requested; the reasons for the request and the petitioner's interest in the request; and references to the authority of the agency to take the requested action. The petitioner may provide the text of the proposed new rule, amended rule, or repealed rule.

(c) When a person petitions an agency to begin a rulemaking proceeding, the agency shall, within 15 days of receipt of the petition, file with the Office of Administrative Law for publication in the Register a notice of the petition's receipt. The notice of petition shall include:

1. The name of the petitioner;

2. The substance or nature of the rulemaking action that is requested;

3. The problem or purpose that is the subject of the request; and

4. The date the petition was received.

(d) An agency shall publish on its Internet website each petition for rulemaking received, no later than the date of publication of the notice of receipt of the petition under (c) above.

History

• Amended by47 N.J.R. 1311(b), Effective 6/15/2015

N.J. Admin. Code § 1:30-4.2 Agency response to petition

(a) Within 60 days of receipt of a rulemaking petition, the agency shall either:

1. Deny the petition, in which case the agency shall provide a written statement of its reasons to the petitioner, and include such reasons in its notice of action;

2. Grant the petition and initiate a rulemaking proceeding within 90 days of the granting of the petition; or

3. Refer the matter for further deliberations, the nature of which shall be specified to the petitioner and in the notice of action and which shall conclude within 90 days of such referral. Upon conclusion of such further deliberations, the agency shall either deny the petition or grant the petition and initiate a rulemaking proceeding within 90 days. The agency shall mail the results of these further deliberations to the petitioner and submit the results to the OAL for publication in the Register.

(b) A specific period of more than 90 days for further deliberations under (a)3 above and/or to initiate a rulemaking proceeding under (a)2 or 3 above may be agreed upon, in writing, by the petitioner and the agency. An agreement to extend either period, or both periods, shall constitute an action on the petition subject to the notice requirements of (d) below.

(c) As used in this section, "initiate a rulemaking proceeding" means the submission of a notice of proposal to the Office of Administrative Law for publication in the next available issue of the New Jersey Register.

(d) Within 60 days of receiving the petition, the agency shall mail to the petitioner, and file with the Office of Administrative Law for publication in the Register, a notice of action on the petition which shall include:

1. The name of the petitioner;

2. The Register citation for the notice of petition;

3. The signature of the agency head, signifying that the petition was duly considered pursuant to law;

4. The nature or substance of the agency action upon the petition; and

5. A brief statement of reasons for the agency action.

(e) An agency shall publish on its Internet website each notice of action on a petition for rulemaking, no later than the date of publication of the notice under (d) above.

History

• Amended by47 N.J.R. 1311(b), Effective 6/15/2015

N.J. Admin. Code § 1:30-4.3 Failure to respond to petition

(a) If an agency fails to act in accordance with the time frames set forth in N.J.A.C. 1:30-4.2(a), the petitioner may request, in writing, a public hearing on the petition by submitting a request to the Director of the Office of Administrative Law. In order to be considered, such written request must be received by the Director of the Office of Administrative Law prior to the receipt by the Office of Administrative Law of a notice of proposal initiating rulemaking in furtherance of the granting of the petition.

(b) Upon receipt of a request for a hearing, the Director shall order a public hearing on the rulemaking petition. The Director shall provide the agency with a notice of the Director's intent to hold the public hearing if the agency does not.

(c) If the agency does not provide notice of a public hearing within 15 days of issuance of the Director's notice, the Director shall schedule a public hearing to be conducted by the Office of Administrative Law. Notice of that hearing shall be provided to the petitioner and the public at least 15 days prior to the hearing. Whether the hearing is conducted by the agency or the Office of Administrative Law, the agency shall publish notice of the hearing on its Internet website, at least 15 days prior to the hearing.

(d) If the public hearing is held by the Office of Administrative Law, it shall be conducted by an administrative law judge, a person on assignment from another agency, a person from the Office of Administrative Law assigned pursuant to N.J.S.A. 52:14F-5, or an independent contractor assigned by the Director.

(e) The petitioner and the agency shall participate in the public hearing. At the hearing, they shall present a summary of their positions on the petition and a summary of the factual information on which their positions on the petition are based. They also shall respond to questions posed by any interested party. The hearing procedure shall otherwise be consistent with the requirements for the conduct of a public hearing as prescribed in N.J.A.C. 1:30-5.5(d), except that, within 90 days after the hearing, the person assigned to conduct the hearing shall make a report summarizing the factual record presented and the arguments for and against proceeding with a rule proposal based upon the petition.

(f) The report shall be filed with the agency and delivered or mailed to the petitioner. A copy of the report shall be filed with the Legislature along with the petition for rulemaking.

History

• Amended by47 N.J.R. 1311(b), Effective 6/15/2015

N.J. Admin. Code § 1:30-4.4 Reserved

History

• Recodified as N.J.A.C. 1:30-6.4 by R.2001 d. 193, effective 6/4/2001 (operative July 1, 2001).
• See: 33 New Jersey Register 915(a), 33 New Jersey Register 1927(a).
• Section was "Executive Order No. 66(1978); expiration".

N.J. Admin. Code § 1:30-4.5 Reserved

History

• Recodified as N.J.A.C. 1:30-6.5 by R.2001 d.193, effective 6/4/2001 (operative July 1, 2001).
• See: 33 New Jersey Register 915(a), 33 New Jersey Register 1927(a).
• Section was "Emergency rule adoption and concurrent proposal".

N.J. Admin. Code § 1:30-4.6 Reserved

History

• Recodified as N.J.A.C. 1:30-6.6 by R.2001 d.193, effective 6/4/2001 (operative July 1, 2001).
• See: 33 New Jersey Register 915(a), 33 New Jersey Register 1927(a).
• Section was "Effective date and promulgation of adopted rule".

N.J. Admin. Code § 1:30-4.7 Reserved

History

• Recodified as N.J.A.C. 1:30-6.7 by R.2001 d.193, effective 6/4/2001 (operative July 1, 2001).
• See: 33 New Jersey Register 915(a), 33 New Jersey Register 1927(a).
• Section was "Timely filing of notice of adoption".

Subchapter 5 PROPOSAL PROCEDURE

N.J. Admin. Code § 1:30-5.1 Notice of proposed rule

(a) Where the law requires that an agency give notice of its rulemaking proceedings, the agency shall prepare a "notice of proposal" and submit the notice to the OAL. The notice of proposal shall comply with the requirements of this section.

(b) The notice of proposal shall include a heading, which shall include, in the following order:

1. The heading of the Administrative Code Title affected (for example, the heading of Title 19 is "Other Agencies");

2. The element within the proposing agency (for example, the Division or Bureau) originating the notice;

3. A caption describing the subject matter of what is proposed;

4. A suggested N.J.A.C. citation for any proposed new rule and the existing citation for any rule(s) proposed for amendment, repeal, or readoption;

5. After "Authorized By:", the name of the adopting agency head and agency and the signature of the adopting agency head or other authorized signatory as provided in N.J.A.C. 1:30-2.4;

6. After "Authority:", a citation to the specific N.J.S.A. statutory authority for the proposal or the Public Law number if an N.J.S.A. citation is unavailable. An agency may not cite its general statutory authority unless specific legal authority is unavailable and the agency is relying on its general or residual powers, in which case a statement to that effect shall be made in the Summary;

7. After "Calendar Reference:", the New Jersey Register publication date and citation of the rulemaking calendar most recently prior to the anticipated publication date of the notice of proposal.

i. If the rulemaking is excepted from the prior calendar listing requirement under N.J.A.C. 1:30-3.3(a), this heading item shall reference the notice Summary. The Summary shall contain the explanation of the exception required under N.J.A.C. 1:30-3.3(b). For example, the heading item may read, "Calendar Reference: See Summary below for explanation of exception to calendar requirement.";

8. An item headed "Proposal Number:", which shall be completed by the OAL; and

9. An announcement of the public's opportunity to be heard regarding the proposal, which shall include:

i. When, where, and how persons may present their views orally or in writing;

ii. When and where persons may attend any formal rule adoption proceeding;

iii. The name and address of the person(s) to receive paper comments submitted through the mail and, if an agency intends to receive oral comments telephonically, the telephone number of the person(s) to receive such comments;

iv. An address to which comments may be submitted through the agency's e-mail system or, if designed to receive messages, electronic mailing list; and

v. If the agency chooses to accept comments by electronic facsimile, a facsimile telephone number (FAX number).

(c) The notice of proposed rule shall include a brief statement of the proposed rulemaking, which shall include, in the following order:

1. A "Summary" statement of the proposed rulemaking with a clear and concise explanation of its purpose and effect. The summary shall describe, detail, and identify:

i. Who and what will be affected by the proposal;

ii. How, when, and where the effect will occur;

iii. What the rulemaking prescribes, proscribes, or otherwise mandates;

iv. What enforcement mechanisms and sanctions may be involved; and

v. Any other relevant or pertinent information;

2. A "Social Impact" statement, which describes the expected social impact of the proposed rulemaking on the public, particularly on any segments of the public proposed to be regulated, and including any proposed or expected differential impact on different segments of the public, including the rulemaking action, and justification therefor;

3. An "Economic Impact" statement, which describes the expected costs, revenues, and other economic impact upon governmental bodies of the State, and particularly any segments of the public proposed to be regulated;

4. A "Federal Standards Statement" (or a "Federal Standards Analysis"), which addresses whether the rule(s) in the notice of proposal contain standards or requirements that exceed standards or requirements imposed by Federal law. The analysis shall apply to any new, readopted, or amended rule(s) under the authority of or in order to implement, comply with, or participate in any program established under Federal law or under a State statute that incorporates or refers to Federal law, standards, or requirements.

i. Rules that are not subject to any Federal standards or requirements shall be accompanied by a statement to that effect and that a Federal standards analysis is not applicable to the rulemaking.

ii. Rules that contain standards or requirements that do not exceed or are the same as Federal standards or requirements shall be accompanied by a statement that cites the Federal standards or requirements and states that the standards or requirements of the rule do not exceed or are the same as those imposed by Federal law.

iii. Rules that exceed standards or requirements imposed by Federal law, notwithstanding the Federal government's determination that lesser standards or requirements are appropriate, shall be accompanied by an analysis, which contains the following:

(1) A discussion of the agency's policy reasons for imposing standards or requirements that exceed those required by Federal law;

(2) A cost-benefit analysis that supports the agency's decision to impose standards or requirements that exceed those required by Federal law;

(3) A discussion that supports the fact that the agency standard or requirement to be imposed is achievable under current technology; and

(4) A certification by the agency head that the analysis permits the public to understand accurately and plainly the purposes and expected consequences of the new, readopted, or amended rule;

5. A "Jobs Impact" statement, which shall include an assessment of the number of jobs to be generated or lost if the proposed rule takes effect;

6. An "Agriculture Industry Impact" statement setting forth the nature and extent of the impact of the proposed rule on the agriculture industry;

7. A "Regulatory Flexibility Statement" (or "Regulatory Flexibility Analysis"):

i. All rules that impose reporting, recordkeeping, or other compliance requirements on small businesses shall include a regulatory flexibility analysis that describes the methods utilized to minimize any adverse economic impact on small businesses.

ii. "Small business" means any business that is resident in New Jersey, independently owned and operated, not dominant in its field, and that employs fewer than 100 full-time employees.

iii. Rules that do not impose reporting, recordkeeping, or other compliance requirements on small businesses shall be accompanied by a regulatory flexibility statement that indicates that no such requirements are imposed, and the basis for that finding.

iv. Rules that impose reporting, recordkeeping, or other compliance requirements on small businesses shall include in the regulatory flexibility analysis with as much quantification as is practical or reliable, the following:

(1) A description of the types and an estimate of the number of small businesses to which the rule will apply;

(2) A description of the reporting, recordkeeping, and other compliance requirements, and the kinds of professional services likely to be needed to comply with the requirements;

(3) An estimate of the initial capital costs, and an estimate of the annual compliance costs, with an indication of any likely variation on small businesses of differing types and sizes; and

(4) An indication of how the rule is designed to minimize any adverse economic impact on small businesses.

v. To indicate how the rule is designed to minimize any adverse economic impact on small businesses, the following approaches shall be considered in the regulatory flexibility analysis:

(1) The establishment of differing compliance or reporting requirements or timetables that take into account resources available to small businesses;

(2) The use of performance rather than design standards; and/or

(3) An exemption from coverage by all or part of the rule, provided that the public health, safety, or general welfare is not endangered. A finding of endangerment shall explain the relationship between the regulatory requirement that cannot be exempted and the public health, safety, or general welfare.

vi. The regulatory flexibility analysis in (c)7iv and v above shall be required whenever small businesses comprise part of, or the entire, regulated group on which reporting, recordkeeping, or other compliance requirements are imposed;

8. A "Housing Affordability Impact Analysis" that contains a description of the types and an estimate of the number of housing units to which the rulemaking will apply, and a description of the estimated increase or decrease in the average cost of housing that will be affected by the rulemaking. As used in this paragraph, "types" means housing groups distinguished by the following categories: housing reserved for occupancy by very low-, low and moderate-, and middle-income households, respectively; single-family, two-family, and multi-family housing; and rental housing and for-sale housing.

i. An analysis under this paragraph shall not include the descriptions required under (c)8 above if the proposing agency finds that the rulemaking would impose an insignificant impact on the affordability of housing and there is an extreme unlikelihood that the rulemaking would evoke a change in the average costs associated with housing. The agency's finding and an indication of the basis for its finding shall be included in the analysis;

9. A "Smart Growth Development Impact Analysis" that contains a description of the types and an estimate of the number of housing units to which the rulemaking will apply, a description of the estimated increase or decrease in the availability of affordable housing that will be affected by the rulemaking, and a description as to whether the rulemaking will affect, in any manner, new construction within Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan. As used in this paragraph, "types" means housing groups distinguished by the following categories: housing reserved for occupancy by very low-, low and moderate-, and middle-income households, respectively; single-family, two-family, and multi-family housing; and rental housing and for-sale housing.

i. An analysis under this paragraph shall not include the descriptions required under (c)9 above if the proposing agency finds that the rulemaking would impose an insignificant impact on smart growth and there is an extreme unlikelihood that the rule would evoke a change in the housing production within Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan. The agency's finding and an indication of the basis for its finding shall be included in the analysis; and

10. A "Racial and Ethnic Community Criminal Justice and Public Safety Impact" statement that shall set forth whether the rulemaking will have an impact on pretrial detention, sentencing, probation, or parole policies concerning juveniles and adults in the State. If the rulemaking will have any of the noted impacts, the statement shall indicate:

i. How the rulemaking would affect racial and ethnic minorities;

ii. Whether the rulemaking is likely to have a disproportionate or unique impact on the racial or ethnic communities;

iii. The rationale for the rulemaking having an identifiable impact on racial and ethnic persons in the State; and

iv. Any anticipated impact upon:

(1) Correctional facilities and services for racial and ethnic minorities;

(2) The adjudication of criminal and juvenile justice matters involving racial and ethnic communities; and/or

(3) The public safety in racial and ethnic communities and the victims and potential victims in those communities.

(d) The notice of proposal shall include the full text of the proposed new rule or amendment, specifically indicating additions and/or deletions.

History

• Amended by47 N.J.R. 1311(b), Effective 6/15/2015

N.J. Admin. Code § 1:30-5.2 Publication and distribution of notice of proposal

(a) After the OAL's receipt of a notice of proposal that conforms to the requirements of N.J.A.C. 1:30-5.1

The OAL shall submit the notice, within two business days of receipt, to the Senate and the General Assembly;

The OAL shall publish the notice of proposal in the next available issue of the New Jersey Register. Pursuant to N.J.S.A. 52:14B-7(c), any notice of proposal that would be cumbersome, or unduly expensive to publish, shall not be printed in full. Instead, such notices shall be summarized in the Register. The proposing agency shall make available the notice of proposal and provide in the published notice the manner in which, and from where, copies may be obtained;

3. The agency shall mail or e-mail either the notice of proposal, as filed, or a statement of the substance of the proposed action to:

i. Interested persons;

ii. Those persons who have made timely request of the agency for notice of its rulemaking actions; and

iii. Those persons on the agency's electronic mailing list or similar type of subscription-based e-mail service;

4. The agency shall distribute either the notice of proposal, as filed, or a statement of the substance of the proposed action to the news media maintaining a press office in the State House Complex;

5. The agency shall publish the notice of proposal on its Internet website, no later than the date of publication of the notice in the New Jersey Register; and

6. The agency shall undertake an additional method of publicity, other than dissemination under (a)2, 3, 4, and 5 above. Each agency shall adopt rules prescribing the manner in which it shall provide additional publicity under this paragraph, which rules shall set forth the circumstances under which each additional method shall be employed.

i. The additional method of publicity shall include information on the time, place, and manner in which interested persons may present comments and either of the following:

(1) The full text of the proposed rule;

(2) A statement of the substance of the proposed action; or

(3) A description of the subject and issues involved.

ii. The additional method of publicity may be by:

(1) Notice in a newspaper of general circulation;

(2) Trade, industry, government, or professional publications;

(3) Distribution of a press release to the news media; or

(4) Posting of a notice in an appropriate location(s), including the agency's Internet website.

(A) If an agency's rule on its method of additional publicity promulgated pursuant to this paragraph provides that the agency's method shall be posting of notice on its Internet website, the publication of a notice of proposal from the agency on the agency's Internet website pursuant to (a)5 above shall satisfy the additional publicity requirements of this paragraph for that notice of proposal.

(b) Additional notice of the rulemaking under (a)3, 4, and 6 above shall be provided at least 30 days prior to the close of the public comment period.

(c) Any notice of proposal that does not meet the requirements in N.J.A.C. 1:30-5.1 and this section may be subject to the provisions of N.J.A.C. 1:30-1.12.

History

• Amended by47 N.J.R. 1311(b), Effective 6/15/2015

N.J. Admin. Code § 1:30-5.3 Informal public input; notice of pre-proposal

(a) Where, prior to the initiation of a formal rulemaking proceeding, an agency seeks assistance in formulating a rule or wishes comments on a preliminary rule draft, it may solicit public input regarding the rulemaking. An agency may use any reasonable informal procedures and means of notice to solicit participation from the regulated or interested public.

(b) Where, pursuant to N.J.S.A. 52:14B-4(e), an agency determines to conduct a deliberative proceeding with respect to a contemplated rulemaking, the agency shall submit a "notice of pre-proposal" to the OAL for publication in the New Jersey Register at least 30 days prior to submission of any formal notice of proposal on the same subject.

(c) The notice of pre-proposal shall include:

1. The name of the adopting officer and agency;

2. The subject matter, problem, and purpose which the agency contemplates addressing; and, when available, draft text of the contemplated rule;

3. A citation of the legal authority authorizing the contemplated action;

4. An announcement of the public's opportunity to be heard regarding the contemplated action, which shall include:

i. Where, when, and how persons may present their comments orally or in writing (see N.J.A.C. 1:30-5.4, Opportunity to be heard); and

ii. When and where persons may attend an informal conference or consultation.

5. The title and nature of any committee, and where appropriate, the names and affiliations of any committee members, appointed to advise the agency with respect to any contemplated rulemaking.

(d) An agency shall afford all interested persons a reasonable opportunity to submit data, views, comments, or arguments, orally or in writing, on the proposed action, and shall fully consider all written and oral submissions, including any written submissions received by the agency through its e-mail systems or, if designed to receive messages, electronic mailing lists.

(e) An agency shall distribute a notice of pre-proposal to interested persons through the use of an electronic mailing list or similar type of subscription-based e-mail service, and make the notice available for public viewing through publication on the agency's Internet website, no later than the date of publication of the notice in the New Jersey Register.

(f) It is recommended that all rulemakings that involve the joint or concurrent promulgation of two or more agencies ("joint proposal and adoption") utilize a pre-proposal.

History

• Amended by47 N.J.R. 1311(b), Effective 6/15/2015

N.J. Admin. Code § 1:30-5.4 Opportunity to be heard

(a) The agency shall accept written or oral comments, arguments, data, and views for at least 30 days following publication in the Register of the notice of pre-proposal or a notice of proposal.

1. If, within 30 days of the publication of a notice of proposal, sufficient public interest is demonstrated in an extension of the time for submission of comments, the agency shall provide an additional 30-day period for the receipt of comments by interested parties. The agency shall not adopt the proposed rule until after the end of that 30-day extension.

i. "Sufficient public interest" for granting an extension of the comment period pursuant to this paragraph shall be determined by the proposing agency based upon definite standards it has adopted as part of its rules of practice required under N.J.S.A. 52:14B-3(2).

(b) Where an agency permits any other method of public comment on a notice of pre-proposal or a notice of proposal, the agency shall provide timely notice of that opportunity in a manner reasonably calculated to reach the interested public.

(c) When a public hearing on a notice of pre-proposal or a notice of proposal is scheduled for a time after the public comment period, the comment period shall be extended in the public hearing notice until the close of the public hearing proceedings. The hearing officer may recommend to the agency head that the comment period be further extended to foster receipt of comments by persons attending the public hearing.

(d) To provide a full comment period, the agency shall accept all public comments postmarked or, if submitted by e-mail or through an electronic mailing list, bearing an e-mail sent date or list posting date within the designated comment period set forth in the notice of pre-proposal or notice of proposal, or as thereafter extended. If the designated comment period ends on a Sunday or postal holiday, the agency shall accept public comments postmarked through the next postal business day after the last day of the comment period.

(e) The agency shall consider fully all written and oral submissions concerning the notice of pre-proposal or notice of proposal.

History

• Amended by47 N.J.R. 1311(b), Effective 6/15/2015

N.J. Admin. Code § 1:30-5.5 Public hearings

(a) An agency shall conduct a public hearing on a proposed rulemaking if requested to do so by a Legislative Committee, a State agency, or a county, local, or municipal governmental entity or if sufficient public interest is shown. The party requesting the public hearing shall submit the request to the agency within 30 days following publication of the notice of proposal in the Register.

"Sufficient public interest" for conducting a public hearing pursuant to this subsection shall be determined by the proposing agency based upon definite standards it has adopted as part of its rules of practice required under N.J.S.A. 52:14B-3(2).

(b) If a public hearing is to be held as part of a proceeding for a pre-proposal or a proposal, the agency shall provide at least 15 days' notice of the public hearing.

1. When a public hearing is scheduled as part of a proceeding for a pre-proposal or a proposal, notice of the public hearing shall be contained in the notice of pre-proposal or proposal published in the New Jersey Register.

2. When a public hearing is scheduled after the notice of pre-proposal or proposal has been published, notice of the public hearing shall be published in the New Jersey Register, if such publication provides 15 days' notice of the hearing. If timely Register publication is not feasible, notice of the public hearing may be published in the Register with less than 15 days' notice, as long as 15 days' notice of the public hearing is given in another manner reasonably calculated to reach the interested public. A copy of such notice shall be filed with OAL. An agency shall also publish notice of a public hearing under this paragraph on the agency's Internet website at least 15 days prior to the hearing date.

(c) All public hearings shall be conducted by a hearing officer, who may be an official of the agency, a member of its staff, a person on assignment from another agency, a person from the Office of Administrative Law assigned pursuant to N.J.S.A. 52:14F-5, or an independent contractor.

(d) Hearings shall be conducted at such times and in locations that shall afford interested parties the opportunity to attend.

(e) If the hearing pertains to an agency notice of proposal, at the beginning of each hearing or series of hearings the agency shall present a summary of the factual information on which its notice of proposal is based, and shall respond to questions posed by any interested party.

(f) The hearing officer shall make recommendations to the agency regarding the adoption, amendment, or repeal of a rule. These recommendations shall be made public.

(g) In addition to any other publication of the results of the public hearing, the recommendations of the hearing officer, and the agency's response either accepting or rejecting the recommendations, shall be summarized and published in the New Jersey Register as set out in (g)1 through 4 below. The notice shall also state where a copy of the public hearing record may be reviewed or obtained.

1. When no proposed rulemaking results from the public hearing, the summary shall be published as a public notice.

When a proposed rulemaking results from the public hearing, the summary shall be published as part of the notice of proposal.

3. When a public hearing is held as part of a proposed rulemaking and the proposed rule is adopted, the summary shall be published in the notice of adoption.

4. When a public hearing is held as part of a proposed rulemaking but the proposed rule is withdrawn or not adopted, the summary shall be published as a notice of agency action.

(h) The public hearing shall be recorded electronically or stenographically, and audio tapes, stenographic tapes, or other untranscribed record of the proceeding shall be maintained by the agency. If a copy of the record is requested by any interested person, the agency shall arrange for the production of a copy of the record. After the requester pays the agency's actual cost for the copy, the copy shall be delivered to the requester.

History

• Amended by47 N.J.R. 1311(b), Effective 6/15/2015

N.J. Admin. Code § 1:30-5.6 Rulemaking record

(a) The agency shall retain a record of any oral and written comments or other material received in response to a notice of proposal (N.J.A.C. 1:30-5.1) or a public hearing (N.J.A.C. 1:30-5.5) for a period of one year following the date of publication. The rulemaking record shall include the following:

1. The date, the method of issuance, and a copy of any notices concerning the rule activity, including:

i. Any notice mailed or e-mailed pursuant to N.J.A.C. 1:30-5.2(a)3;

ii. The notice distributed to the news media pursuant to N.J.A.C. 1:30-5.2(a)4; and

iii. The additional publicity pursuant to N.J.A.C. 1:30-5.2(a)6.

iv. Any additional publicity pursuant to N.J.A.C. 1:30-5.2(a)6.

2. A description of the public comments on the notice of proposal:

i. The names of the persons commenting on the notice of proposal;

ii. The name of any trade, craft, or professional organization or association making written or oral submissions;

iii. A copy or summary of each written submission and a summary of each oral submission of any person made in response to the notice of proposal, and any written answer of the agency;

iv. The certificate of the adopting officer attesting that all submissions were examined and that due consideration was given to their merits prior to adoption of the proposed rulemaking. A copy of the signed Certificate of Proposal, Adoption, and Promulgation (form OAL APF-(year)-(version) (for example, Form OAL APF-17-1)) shall satisfy this requirement;

v. A description of the principal points of controversy revealed during the proceeding; and

vi. A statement of the reasons for accepting and/or rejecting the public comments.

3. A description of any public hearing or other proceeding that was held as a result of the notice of proposal (see N.J.A.C. 1:30-5.5), including:

i. The date, time, and place;

ii. The name and title or position of the presiding person;

iii. The nature of the proceeding; and

iv. The recommendations of the hearing officer, in the case of a public hearing conducted pursuant to N.J.S.A. 52:14B-4(g).

(b) An agency may, but is not required to, maintain a record of any proceedings conducted pursuant to N.J.A.C. 1:30-5.3. If, however, any preliminary proceedings conducted pursuant to N.J.A.C. 1:30-5.3 result in a formal proposed rulemaking, the agency shall discuss in the notice of proposal Summary such preliminary proceedings and the public's participation therein.

(c) If the proposed rulemaking is adopted, the agency shall retain the rulemaking record for a period of not less than three years from the effective date of the adopted rule.

(d) The rulemaking record constitutes an official document of the administrative agency, is evidence of its compliance with the legislative mandate to provide opportunity for public comment, and shall be available for public inspection at the agency.

History

• Amended by47 N.J.R. 1311(b), Effective 6/15/2015

N.J. Admin. Code § 1:30-5.7 Negotiating a rule

(a) When an agency desires to negotiate the language of a rulemaking, the agency may voluntarily seek the assistance of the OAL in accordance with the following provisions. The procedure to negotiate a rule established in this section is separate and apart from any methods an agency may utilize to conduct a pre-proposal proceeding.

(b) An agency wishing to negotiate a notice of proposal shall submit a written request to the Division of Administrative Rules, together with a summary of the subject matter; the problem and purpose that the agency contemplates addressing; a list of the interests affected; and the suggested representatives (negotiating team) of these interests.

(c) Each agency and interest group shall have one representative.

(d) A negotiation team shall be composed of no more than 10 members, including the OAL representative.

(e) The Division of Administrative Rules shall review the request, contact the agency and representative(s) of interest groups, if needed, and then determine whether the subject matter is feasible to negotiate (that is, appropriate for non-adversarial fact-finding and consensus); the interests involved are clearly defined; representatives of the interests are sufficiently diverse; and that each representative is accountable to his or her interest group.

(f) Once the Division of Administrative Rules has determined that negotiations should commence, a notice of rule negotiation shall appear in the New Jersey Register. The notice shall identify the subject matter, interests, participants in the negotiation, and the OAL representative. Any interested party who is not heretofore represented on the negotiation team may file a petition for participation with the OAL representative.

(g) The petition for participation shall be in the form of a letter addressed to the OAL representative, which outlines the petitioner's interests, and why they are not represented by the current composition of the negotiating team. The petition shall be received by the OAL no later than 10 days after the notice of negotiation appears in the Register. The OAL representative will then determine within five business days of receipt of the petition whether to include the petitioner.

(h) The OAL representative shall convene the negotiation team within 20 days of notice of negotiation in the Register. The negotiation shall be completed within 10 days of commencement of same, unless all participants agree to continue.

(i) The OAL representative will provide all participants with a final version of a negotiated rule in the form required by N.J.A.C. 1:30-5.1 within 10 days of the completion of the negotiations.

(j) The agency shall either propose the rules negotiated or notify the OAL and all representatives that it rejects the negotiation within 30 days or such further period as agreed between the OAL Director and the head of the agency that had requested the negotiation.

(k) If, after 60 days from the commencement of the negotiation, no negotiated rule has been approved, the OAL representative may terminate the negotiation and disband the negotiating team. A notice of this action shall appear in the next available Register.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-5.8 Reserved

History

• Repealed by R.2006 d.283, effective 8/7/2006.
• See: 38 N.J.R. 1117(a), 38 N.J.R. 3159(a).
• Section was "Federally required rule".

Subchapter 6 PROCEDURE UPON ADOPTION

N.J. Admin. Code § 1:30-6.1 Notice of adoption

(a) When an agency adopts a proposed rule, the agency shall prepare a "notice of adoption" and submit the notice to the OAL. The notice of adoption shall comply with the requirements of this section.

(b) The notice of adoption shall contain, in the following order:

1. The heading of the Administrative Code Title affected (for example, the heading of Title 19 is "Other Agencies");

The element within the adopting agency (for example, the Division or Bureau) originating the notice;

3. A caption describing the subject matter of what is adopted;

4. The N.J.A.C. citation for any adopted new rule and the existing citation for any rule (s) amended, repealed, or readopted;

5. After "Proposed:", the publication date of the notice of proposal and the New Jersey Register citation of that notice;

6. After "Adopted:", the date of adoption and the name, title, and signature of the adopting agency head or any other person authorized by statute to adopt agency rules;

7. After "Filed:", the date the notice of adoption is filed with the OAL and whether the proposed rulemaking is adopted "without change" from the proposal, with "non-substantial changes not requiring additional public notice or comment (see N.J.A.C. 1:30-6.3)," with "substantial changes to proposal after additional notice and public comment, pursuant to N.J.S.A. 52:14B-4.1," or some combination thereof;

8. After "Authority:", a citation to the specific N.J.S.A. statutory authority for the rulemaking or the public law number if an N.J.S.A. citation is unavailable. An agency may not cite its general statutory authority, unless specific legal authority is unavailable and the agency is relying on its general or residual powers, in which case a statement to that effect must have been made in the proposal Summary;

9. After "Effective Date:", the effective date of the notice of adoption;

10. If applicable, after "Operative Date:", the operative date of the notice of adoption, if later than the date of Register publication;

11. After "Expiration Date:", the expiration date(s) of the rule(s) adopted, amended, repealed, or readopted established in accordance with N.J.A.C. N.J.A.C. 1:30-6.4. If the rule(s) affected is exempt from having an expiration date, a statement of that exemption, including its basis, shall be provided;

12. If appropriate, a Summary of Hearing Officer's Recommendations and Agency Responses pursuant to N.J.A.C. 1:30-5.5;

13. A Summary of Public Comments and Agency Responses, that shall include a summary of the comments, arguments, data and views received, and points of controversy developed during the rulemaking proceeding; the reasons for adopting the public comments accepted; and the reasons for rejecting the public comments rejected.

i. Except for commenters requesting confidentiality or commenters whose confidentiality is protected by law, this summary shall include the names of all persons who submitted oral or written comments, arguments, data, and views concerning the notice of proposal. If the person is commenting on behalf of an entity, the adopting agency shall list as the commenter either the person and the entity for which the person is commenting, or the entity alone;

14. Summary of Changes Upon Adoption, describing any changes between the rules as proposed and adopted, and the reasons for the changes. Changes upon adoption described and explained in the notice of adoption in response to a comment need not be included in this summary, in which case this portion of the notice would be a Summary of Agency-Initiated Changes;

15. A Federal Standards Statement (or a Federal Standards Analysis and agency head certification) as required by N.J.A.C. 1:30-5.1(c)4.

i. If there are no changes upon adoption, the statement or analysis published as part of the notice of proposal may be included;

ii. If there are changes upon adoption that affect whether or not the rule exceeds Federal standards or requirements or that require reproposal, the changes shall be evaluated and a new statement or analysis prepared pursuant to N.J.A.C. 1:30-5.1(c)4 iii; and

16. The text of any changes between the rules as proposed and as adopted, specifically indicating additions and deletions.

(c) Along with a notice of adoption pursuant to (a) and (b) above, the agency shall also complete and submit to the OAL a Certificate of Proposal, Adoption, and Promulgation (form OAL APF-(year)-(version) (for example, Form OAL APF-17-1)) signed by the adopting agency head, or other person authorized by statute to adopt rules, that the rule was duly adopted according to law and in compliance with the requirements of the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., and of this chapter.

(d) An agency shall also publish the notice of adoption on the agency's Internet website, no later than the date of publication of the notice in the New Jersey Register.

History

• Amended by47 N.J.R. 1311(b), Effective 6/15/2015

N.J. Admin. Code § 1:30-6.2 Time for filing notice of adoption

(a) No notice of adoption, other than that for an emergency rule, organizational rule, or a Federally required rule, shall be accepted for filing until either 60 days after the publication of the notice of proposal by the Office of Administrative Law or the passage of whatever comment period is established under N.J.A.C. 1:30-5.4(a), whichever is later.

(b) Any notice of adoption submitted for filing shall be reviewed by the Office of Administrative Law within not more than five business days after the submission deadline for notices of adoption for the issue of the New Jersey Register for which the notice was submitted. Any notice of adoption that is found to be in non-compliance with N.J.S.A. 52:14B-1 et seq., and this chapter shall be subject to the provisions of N.J.A.C. N.J.A.C. 1:30-1.12.

(c) If a notice of proposal has not been adopted and filed with the OAL within one year from the date the notice of proposal was published in the Register, or within 18 months of such date in accordance with N.J.A.C. 1:30-6.3(e), the notice of proposal shall expire. Before the proposed rule amendment, repeal, or readoption can be adopted, the agency must resubmit the notice of proposal for publication in the Register and must comply again with the notice and opportunity to be heard requirements of the Act.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-6.3 Variance between the rule as proposed and as adopted

(a) Where, upon the conclusion of the public comment period for a notice of proposal, an agency determines to make substantial changes to the proposed rule, the agency shall either:

1. Publish a new notice of proposal that incorporates the substantial changes and supersedes, entirely or in part, the previously published notice of proposal; or

2. Utilize the process set forth in (c) below to permit public consideration of and comment on the changes before adoption of the notice of proposal.

(b) As used in this section, "substantial changes" means any changes to a proposed rule that would significantly:

1. Enlarge or curtail who and what will be affected by the proposed rulemaking;

2. Change what is being prescribed, proscribed, or otherwise mandated by the rulemaking; or

3. Enlarge or curtail the scope of the proposed rulemaking and its burden on those affected by it.

(c) Upon making a determination that it would be appropriate to make substantial changes to a proposed rulemaking upon adoption, an agency may submit a public notice setting forth the proposed changes to the Office of Administrative Law for publication in the Register. The public notice shall be submitted to the Office of Administrative Law in accordance with the submission deadlines for notices of proposal established pursuant to N.J.A.C. 1:30-1.14. The public notice shall include:

1. A description of the changes between the rule as originally proposed and the new proposed changes;

2. The specific reasons for proposing the additional changes;

3. A discussion of how the new proposed changes would alter the impact statements and analyses included in the notice of proposal;

4. A report listing all parties submitting comments on the originally proposed rule provisions subject to the proposed additional changes, summarizing the content of the submissions on those provisions and providing the agency's response to the data, views, and arguments contained in the submissions;

5. The manner in which interested persons may present their views on the new proposed changes; and

6. The text of the originally proposed rule subject to the new proposed changes, specifically indicating the proposed additions and/or deletions of the new proposed changes.

(d) An agency submitting a public notice under (c) above shall comply with the requirements for notice, in addition to publication in the Register, set forth in N.J.A.C. 1:30-5.2(a)3 through 6. The publication of the notice on the agency's Internet website pursuant to N.J.A.C. 1:30-5.2(a)5 shall occur no later than the date of publication of the notice in the Register. Such agency shall also provide a comment period of at least 60 days from the date the public notice is published in the Register in which interested parties may present their views on the new proposed changes. Upon the conclusion of the public comment period, the agency may proceed with a notice of adoption in accordance with the provisions of this subchapter. As part of the notice of adoption, the agency shall include an appropriately headed section devoted to the substantial changes contained in the public notice, listing all parties submitting comments concerning the provisions of the proposed rule changes contained in the public notice, summarizing the content of the submissions that are related to the proposed rule changes contained in the public notice, and providing the agency's response to the data, views, and arguments contained in the relevant submissions.

(e) A notice of proposal that includes a public notice pursuant to (c) and (d) above shall expire 18 months after the date of publication of the notice of proposal in the Register.

(f) Where the changes between the rule as proposed and as adopted are not substantial as defined in (b) above, the changes shall not prevent the adopted rule from being accepted for filing. Changes that are not substantial include:

1. Spelling, punctuation, technical, and grammatical corrections;

Language or other changes, whose purpose and effect is to clarify the notice of proposal; and

3. Changes that do not significantly enlarge or curtail the scope of the rule and its burden, enlarge or curtail who or what will be affected by the rule, or change what is being prescribed, proscribed, or mandated by the rule.

History

• Amended by47 N.J.R. 1311(b), Effective 6/15/2015

N.J. Admin. Code § 1:30-6.4 Expiration date for adopted rule

(a) Every adopted or readopted chapter in the New Jersey Administrative Code shall expire seven years after the chapter's original or readoption effective date, unless a sooner expiration date is established in accordance with (g) below; a sooner or later expiration date is required pursuant to the statute authorizing the chapter; or no expiration date is required pursuant to (c) below. All notices of adoption filed with the OAL shall include the expiration date(s) of the rules affected by the notice of adoption.

(b) Expiration dates shall be fixed at the chapter level. An adopted new chapter shall have an expiration date of no more than seven years from the chapter's effective date.

(c) No expiration date need be included where the adopting agency establishes in writing that the rules in a chapter are exempt from the expiration date requirement under (c)1 or 2 below:

1. The provisions of the rules are prescribed by Federal law, so that the agency exercises no discretion as to whether to promulgate the rules and as to what is prescribed by the rules, in which case the Federal law shall be cited in the notice of adoption; or

2. The expiration of the rules would violate any other Federal or State law, in which case the Federal or State law shall be cited in the notice of adoption.

(d) The Governor may, upon the request of an agency head, and prior to the expiration date of the rule, continue in effect an expiring rule for a period to be specified by the Governor.

(e) The Governor may, upon the request of an agency head within five days after the expiration of a rule, restore the effectiveness of an expired rule as of its expiration date, for a period to be specified by the Governor, in order to effect the readoption of the rule in accordance with (g) through (i) below.

(f) An expiration date shall remain effective, irrespective of any subsequent amendments to the rules, short of a complete repeal and repromulgation of the whole chapter.

1. Any notice of adoption of an amendment to a chapter shall include the expiration date that has been established for the chapter.

(g) In order to maintain the effectiveness of a chapter, the chapter must be duly proposed for readoption, adopted, and filed on or before the chapter expiration date, or readopted through the notice of readoption process set forth in (h) below. Upon the filing of a notice of proposed readoption, the expiration date of the subject chapter shall be extended for 180 days, if such notice is filed with the OAL on or before the chapter expiration date. If the chapter expiration date falls on a Saturday, Sunday, or legal holiday, the 180-day expiration date extension shall take effect if the filing of the notice of proposed readoption occurs no later than the next business day after the expiration date. The readopted rules are effective upon filing with the OAL.

1. The new expiration date resulting from the completion of the readoption process shall be calculated from the date of filing of the readoption notice of adoption.

2. Any amendments or changes to readopted rules are effective upon publication of either:

i. The notice of adoption of a proposed readoption; or

ii. A notice of readoption in accordance with (h) below.

(h) In the case of a readoption without changes to the existing chapter, or a readoption with technical changes as approved by the OAL, an agency may continue in effect an expiring chapter for a seven-year period by filing a public notice (hereinafter, "a notice of readoption") with the OAL for publication in the Register at least 30 days prior to the expiration date of the chapter. If a notice of readoption is filed with the OAL less than 30 days prior to the chapter expiration date, the notice will not be published and the filing of the notice will not change the chapter expiration date; in order to readopt the chapter that was the subject of such notice, the readoption of the chapter must be proposed and adopted in accordance with (g) above. The notice of readoption shall include the citation for the chapter; a general description of the chapter; the specific legal authority under which the chapter is authorized; the name and title of the individual, or the name of the entity, authorizing the readoption; the effective date of the readoption; the effective date of the technical changes, if any; and the new expiration date of the chapter. The notice of readoption shall be effective upon filing with the OAL, and the new chapter expiration date shall be calculated from the date of filing of the notice of readoption. As used in this subsection, "technical changes" means changes to: correct spelling, grammar, and punctuation; correct codification; update contact information; or correct cross-references. The agency shall also publish the notice of readoption on the agency's Internet website, no later than the date of publication of the notice in the Register.

1. In the case of a published notice of proposed readoption of a chapter, with or without amendments, that has not been adopted by the promulgating agency, the notice of readoption process set forth in this subsection shall not be used by the promulgating agency to supersede the notice of proposed readoption, or the readoption portion of a notice of proposed readoption with amendments. In order to readopt the chapter subject to the notice of proposed readoption, with or without amendments, the promulgating agency shall submit a notice of adoption of the proposed readoption to the OAL for publication in the Register prior to the chapter's expiration date.

2. In the case of a rule or amendment that, pursuant to specific statutory authority, was adopted without a notice of proposal and became effective upon submission to the OAL for a period of time set forth in the authorizing statute, and for which the authorizing statute prescribes that continuation of the rule or amendment beyond the time period shall be accomplished through readoption, the notice of readoption process set forth in this subsection shall not be used by the promulgating agency in place of a notice of proposal and a notice of adoption of the rule's or amendment's initial readoption, in accordance with (g) above, to give the rule or amendment effect beyond the statutory time period.

(i) In the case of a proposed readoption of an expiring chapter with substantial amendments, an agency may continue the expiring chapter for a seven-year period by duly proposing the readoption with substantial amendments and readopting the chapter prior to its expiration. As used in this subsection, "substantial amendments" means any amendments that are not technical changes as defined in (h) above.

(j) Any readoption of rules that is proposed and could be adopted prior to their expiration date under (g) and (i) above, but is not filed for adoption with the OAL until after the expiration date of the rules, shall be considered new rules, which are effective upon publication of the notice of adoption in the Register. The new expiration date shall be calculated from the date of publication, not the date of filing with the OAL.

(k) Any proposed readoption of rules that expired before filing of the notice of proposal shall be considered proposed new rules.

History

• Amended by47 N.J.R. 1311(b), Effective 6/15/2015

N.J. Admin. Code § 1:30-6.5 Emergency rule adoption and concurrent proposal

(a) Any agency adopting an emergency rule pursuant to N.J.S.A. N.J.S.A. 52:14B-4(c) shall comply with the requirements of the adoption process set forth in N.J.A.C. N.J.A.C. 1:30-6.1. The documents to be filed for an emergency rule adoption shall include:

1. A Certificate of Proposal, Adoption, and Promulgation (form OAL APF-(year)-(version) (for example, Form OAL APF-17-1)) signed by the agency head adopting the emergency rule;

2. A written summary of the subject matter of the emergency rules, which includes a finding that there is an imminent peril that necessitates emergency proceedings; the basis for the finding; and social and economic factors that bear upon the finding;

3. A signed statement from the Governor concurring as to the existence of an imminent peril that justifies the emergency rulemaking proceeding; and

4. The text of the emergency rule.

(b) An emergency rule is effective upon filing with the OAL.

(c) Upon filing with the OAL, the OAL shall transmit the Governor's signed statement and a copy of the emergency rulemaking to the President of the Senate and the Speaker of the General Assembly.

(d) To continue the provisions of an emergency rule beyond the statutory 60-day period of emergency (see N.J.S.A. 52:14B-4(c)), the agency may propose the provisions of the emergency rule in a notice of proposal, which is filed with the OAL at the same time that the emergency adoption is filed. The notice of emergency adoption shall state that the rule is being proposed concurrently. The concurrent notice of proposal shall comply with N.J.A.C. 1:30-5.1 and may be adopted after the comment period. The adoption of the concurrent notice of proposal shall be effective upon timely filing of the notice of adoption with the OAL. As used in the preceding sentence, "timely" means on or before the expiration date of the emergency rule. Any changes to the readopted rule shall be effective upon publication of the notice of adoption.

(e) An adoption of a concurrent notice of proposal filed after the expiration of the emergency rule shall be effective upon publication in the Register.

(f) The provisions of an emergency rule shall not be readopted as an emergency rule.

(g) An agency shall publish on its Internet website, a summary of any emergency rule adopted pursuant to this section, and the statement of reasons for the agency's finding that an imminent peril exists. The website publication shall occur on the date the emergency rule is filed with the Office of Administrative Law. An agency shall publish the notice of emergency adoption and, if applicable, concurrent notice of proposal on the agency's Internet website, no later than the date of publication of the notice in the New Jersey Register.

History

• Amended by47 N.J.R. 1311(b), Effective 6/15/2015

N.J. Admin. Code § 1:30-6.6 Effective date and promulgation of adopted rule

(a) The following rules are effective upon filing with the OAL:

1. Any rule adopted as an emergency rule pursuant to N.J.A.C. 1:30-6.5(b) and (d);

2. Any rule readopted pursuant to N.J.S.A. 52:14B-5.1 (see N.J.A.C. 1:30-6.4(f) );

3. Any rule adopted as an organizational rule pursuant to N.J.S.A. 52:14B-4(b); or

4. Any concurrent rule, the adoption of which is filed prior to the expiration of the emergency rule.

(b) Any adopted rule other than as listed at (a)1 through 4 above is effective upon publication in the Register.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

N.J. Admin. Code § 1:30-6.7 Timely filing of notice of adoption

In order to avoid the expiration of a chapter or a proposed rulemaking, or to avoid a break in effectiveness between an emergency adoption and the adoption of a concurrent notice of proposal, a notice of adoption shall be filed on or before the expiration date of the chapter, notice of proposal, or emergency adoption. If such date falls on a Saturday, Sunday, or legal holiday, the filing shall occur no later than the next business day after the expiration date.

History

• Amended by 50 N.J.R. 1433(a), effective 6/18/2018

Chapter 31 ORGANIZATION OF THE OFFICE OF ADMINISTRATIVE LAW

Subchapter 1 OPERATION AND PROCEDURES OF THE OFFICE OF ADMINISTRATIVE LAW

N.J. Admin. Code § 1:31-1.1 Functions of the Office

(a) The Office of Administrative Law (OAL) created by statute in 1978, is independent of any executive department, board, division, commission, agency, council, authority, office, or officer of the State of New Jersey. The OAL performs four major functions:

1. Conducts contested case hearings, as provided in N.J.S.A. 52:14B-10 and N.J.S.A. 52:14F-8, and with the consent of the Director conducts other administrative hearings if requested by an agency head. In general, the Office of Administrative Law acquires contested case jurisdiction over a matter after an agency head determines that a contested case exists and subsequently files the case with the OAL, as provided in N.J.A.C. N.J.S.A. 1:1-1;

2. Promulgates rules for the conduct of contested case hearings. Rules are promulgated to assist judges, attorneys, and contested case parties by clarifying legal requirements;

3. Supervises, coordinates and records rulemaking proceedings within the Executive Branch. Under the authority of N.J.S.A. 52:14F-5(f), the OAL oversees agency compliance with the Administrative Procedure Act (N.J.S.A. 52:14B-1 et seq. and N.J.S.A. 52:14F-1 et seq.) and through N.J.A.C. 1:30-1 has established standards to guide agency rulemaking.

4. Publishes the New Jersey Register and the New Jersey Administrative Code and makes copies of initial decisions available through the Rutgers Newark School of Law website njlaw.rutgers.edu. The publication function of the OAL is multifaceted:

i. Publication of proposed rules in the New Jersey Register gives an interested person an opportunity to comment and object;

ii. Publication of adopted rules in both the New Jersey Register and New Jersey Administrative Code provides a ready, updated reference to State agency rules; and

iii. Availability of decisions in contested cases provides the public with access to administrative adjudications.

History

• Amended by47 N.J.R. 1314(a), Effective 6/15/2015

N.J. Admin. Code § 1:31-1.2 Reserved

History

• Recodified by R.1987 d.287, effective 7/20/1987.
• See: 19 New Jersey Register 677(a), 19 New Jersey Register 1291(b).
• Section "Procedure to petition for a rule" recodified to N.J.A.C. 1:31-2.1.

N.J. Admin. Code § 1:31-1.3 Public information requests and submissions

(a) A member of the public may obtain information or make a submission or a request, or file a petition concerning any program of the Office of Administrative Law by contacting the Public Information Officer, Office of Administrative Law, PO Box 049, Trenton, New Jersey 08625-0049.

(b) Any person may obtain copies of State agency rules, or may obtain information about the New Jersey Register or Administrative Code by contacting the Division of Administrative Rules, PO Box 049, Trenton, New Jersey 08625-0049. Register and Code subscription information can be obtained from the publisher, LexisNexis, at 1-800-833-9844 or at http://www.lexisnexis.com.

(c) The cost for copies of documents is in accordance with N.J.S.A. 47:1A-5.b.

(d) Payment for copies under (c) above may be made by check payable to Treasurer, State of New Jersey.

History

• Amended by47 N.J.R. 1314(a), Effective 6/15/2015

Subchapter 2 PROCEDURES OF THE OFFICE OF ADMINISTRATIVE LAW

N.J. Admin. Code § 1:31-2.1 Procedure to petition for a rule

(a) An interested person may petition for the promulgation, amendment, or repeal of any rule of the Office of Administrative Law. A petition shall be legible, intelligible, and signed by the petitioner, and may be submitted via e-mail, mail, or any other means. Each petition shall contain the following information:

1. The full name and address of the petitioner;

2. The substance or nature of the rulemaking which is requested;

3. The reasons for the request;

4. The statutory authority under which the Office of Administrative Law may take the requested action.

(b) The petitioner may provide the text of the proposed new rule, amended rule, or repealed rule.

(c) The Office of Administrative Law shall immediately date stamp and log each document submitted as a petition. Upon filing, the Office of Administrative Law shall, within 15 days of receipt of the petition, submit a notice of receipt of the notice of petition for a rule for publication in the New Jersey Register pursuant to the requirements of N.J.A.C. 1:30-4.1(c).

(d) No later than 60 days after receiving a petition, the Office of Administrative Law shall mail to the petitioner, file for publication in the New Jersey Register, and make available on the Office of Administrative Law's website a notice of action on the petition which shall contain the information prescribed by N.J.A.C. 1:30-4.2.

History

• Amended by47 N.J.R. 1314(a), Effective 6/15/2015

N.J. Admin. Code § 1:31-2.2 Extension of comment period on proposed rulemaking activity

(a) The designated public comment period for any rule proposed by the Office of Administrative Law shall be extended for a period of 30 additional days when sufficient public interest is demonstrated in an extension of the time for comment submission or whenever deemed appropriate by the Director.

1. Sufficient public interest for granting an extension of the public comment period exists whenever 10 or more individuals or entities have requested an extension of the comment period to the Office of Administrative Law. This communication may be submitted either orally or in writing, via hand delivery, mail, or e-mail, to the individual designated to receive comments in the notice of rule proposal within 30 days of publication of the proposal.

History

• Amended by47 N.J.R. 1314(a), Effective 6/15/2015

N.J. Admin. Code § 1:31-2.3 Public hearing on proposed rulemaking activity

(a) The Office of Administrative Law shall conduct a public hearing on a proposed rule if, within 30 days following publication of the proposed rule in the New Jersey Register:

1. A public hearing is requested by a committee of the Legislature;

A public hearing is requested by a governmental agency or subdivision;

3. Sufficient public interest in a public hearing is demonstrated. Sufficient public interest in a public hearing shall be demonstrated whenever 10 or more individuals or entities request, either orally or in writing, such hearing. Such notice shall include the basis for the request; or

4. Whenever deemed appropriate by the Director.

History

• Amended by47 N.J.R. 1314(a), Effective 6/15/2015

N.J. Admin. Code § 1:31-2.4 Additional notice of rulemaking activity

(a) The Office of Administrative Law shall provide at least 30 days notice of all proposed rulemaking. Notice shall be provided in the following manner:

1. Publication in the New Jersey Register;

2. Distribution of a notice or statement of the substance of the proposed rulemaking activity to the news media maintaining a press office in the New Jersey State House Complex;

3. Posting of the notice on the official website of the New Jersey Office of Administrative Law at www.state.nj.us/oal;

4. Mailing or e-mailing of the notice or a statement of the substance of the proposed rulemaking activity to:

i. All persons who have made timely requests to the Office of Administrative Law for advance notice of its rulemaking proceedings;

ii. Persons or organizations likely to be affected by or interested in the intended action, including, but not limited to, the New Jersey State Bar Association and to any appropriate committees thereof; the New Jersey Office of Attorney General; New Jersey State administrative agencies; public interest groups; New Jersey Legal Services; and labor and trade unions; and

iii. Persons on the Office of Administrative Law's electronic mailing list; and

5. Disseminating a press release to select major local media.

(b) Notice may also be provided through publication in the New Jersey Law Journal, New Jersey Lawyer, or other appropriate publication.

History

• Amended by47 N.J.R. 1314(a), Effective 6/15/2015

Subchapter 3 DISCIPLINE OF ADMINISTRATIVE LAW JUDGES

N.J. Admin. Code § 1:31-3.1 General causes for discipline

(a) The Director of the Office of Administrative Law may discipline an administrative law judge for:

1. Willful misconduct including misconduct which, although not directly pertaining to judicial duties, brings the office into disrepute or is prejudicial to the administration of justice;

Willful, persistent, or negligent failure of a judge to perform judicial duties, including incompetent performance of judicial duties;

3. Intemperance, including injudicious personal conduct, recurring loss of temper or control, abuse of alcohol, or the abuse of controlled dangerous substances;

4. Any conduct which constitutes a violation of the OAL Office Policies for Administrative Law Judges or the Code of Judicial Conduct for Administrative Law Judges; or

5. Other sufficient cause.

History

• Amended by R.1992 d.430, effective 11/2/1992.
• See: 24 New Jersey Register 2755(a), 24 New Jersey Register 4028(a).
• Revised (a)4.

N.J. Admin. Code § 1:31-3.2 Complaints and forms of discipline

(a) Upon becoming aware of any circumstance, statement, criticism, or complaint, which is not obviously unfounded or frivolous, which does not relate solely to a matter subject to an appeal, and which indicates that an administrative law judge has committed any conduct described in N.J.A.C. 1:31-3.1, the Director may initiate proceedings to impose disciplinary sanctions. Such sanctions shall include, but not be limited to:

1. The issuance of a private reprimand;

2. The issuance of a public reprimand;

3. The imposition of a fine;

4. A suspension of up to six months; or

5. A recommendation to the Governor for removal, pursuant to Art. V, Sec. IV, Par. 5 of the New Jersey Constitution.

N.J. Admin. Code § 1:31-3.3 Minor discipline

When the Director seeks to impose a written or oral reprimand, public or private, an administrative law judge shall receive formal notification of the charges and shall be afforded an opportunity to review the charges and to respond to the Director either orally or in writing. No formal hearing will be provided. The notice to the judge shall specify in ordinary and concise language the charges against the judge and the alleged facts upon which they are based. The decision of the Director shall be final.

N.J. Admin. Code § 1:31-3.4 Penalty beyond reprimand

When the Director believes that a penalty greater than an oral or written reprimand may be appropriate, the Director may forward the matter to the Office of Administrative Law Advisory Committee on Judicial Conduct or issue a formal complaint and order in accordance with N.J.A.C. 1:31-3.8.

N.J. Admin. Code § 1:31-3.5 Establishment of OAL Advisory Committee on Judicial Conduct

(a) There is established an OAL Advisory Committee on Judicial Conduct to investigate complaints referred by the Director concerning judicial conduct and to give advisory opinions, recommendations, and reports to the Director of the Office of Administrative Law. The Committee shall consist of three members who shall be appointed by the Director for terms expiring respectively one, two, and three years after appointment, whose respective successors shall be appointed upon the expiration of such terms and annually thereafter to serve three-year terms. A Committee member may be reappointed at the discretion of the Director. The Director may appoint any administrative law judge to serve as a member of the Committee. If willing to serve, retired administrative law judges or retired judges of the Superior Court of New Jersey may be eligible for appointment to the Committee at the discretion of the Director. The Director shall appoint one member to serve as Chairperson. All appointments to fill vacancies shall be for the unexpired term.

(b) No action of the Committee shall be valid unless concurred to by a majority of its membership.

(c) An employee of OAL designated by the Director will serve as secretary to the Committee.

(d) The Committee shall be provided with clerical and administrative assistance as may be needed to perform its function. If a criminal investigation is required, the matter shall be referred to the Attorney General.

(e) All papers filed with and proceedings before the Committee shall be confidential.

N.J. Admin. Code § 1:31-3.6 Preliminary investigation

(a) The Committee shall conduct a preliminary investigation at the request of the Director. To perform a preliminary investigation, the Committee may utilize the following methods:

1. It may request that the Director provide sufficient resources to conduct an investigation of the matter.

2. Unless the circumstances render it unnecessary or inappropriate, the Committee may require the complainant to file with the Committee a statement signed under oath against the judge.

3. The Committee shall notify the judge of the nature of the charge, the name of the person making it where appropriate, and that the judge has the opportunity to present within such reasonable time as the Committee shall fix, such matters as the judge may choose with respect to it. This includes the right to appear before the Committee, with or without counsel, and to make a statement under oath as the judge deems appropriate. If deemed appropriate, the Committee may request that the complainant make a supplemental statement under oath. These statements, if oral, shall be sound recorded.

The notice to the judge shall specify in ordinary and concise language the charges against the judge and the alleged facts upon which they are based.

N.J. Admin. Code § 1:31-3.7 Recommendations of the Committee

(a) Upon completion of the preliminary investigation, the Committee may take any of the following actions which may be accepted, rejected, or modified by the Director:

1. The Committee may recommend that the Director dismiss the charges and notify the parties of the action taken. If the matter has been made public, the Director may, at the request of the judge involved, issue a short statement of clarification and correction.

2. If the investigation reveals some departures by the judge from common standards of judicial propriety, such as discourtesy, rudeness, disparagement of witnesses or attorneys, and the like, or other conduct or demeanor which would reflect unfavorably upon the administration of justice if persisted in or were to become habitual or more substantial in character, the Committee may request the judge to appear at a time and place designated for an informal discussion of the matter. After making the judge aware of the objectionable conduct, and becoming satisfied that it was temporary in nature and not likely to become habitual, the Committee may recommend to the Director that the complaint be dismissed and the parties advised of the action taken, and the reasons therefor. Any such conference shall be recorded by a sound recording device and a transcribed record of the tape filed with the papers in the proceeding.

3. If the Committee believes that the judge may be suffering from a mental or physical disability which is disabling the judge and may continue to disable the judge indefinitely or permanently from the performance of his or her duties, it shall recommend to the Director an appropriate response that balances any medical need of the judge and protects the public interest.

4. Whenever the Committee concludes from the preliminary investigation that the circumstances merit an oral or written reprimand, the Committee shall promptly file a copy of the recommendation, and the record of the Committee certified as such by its secretary, with the Director. If the Director agrees with the recommendation, the Director shall proceed in accordance with N.J.A.C. 1:31-3.3. If the Director disagrees with the recommendation, the Director may issue a formal complaint and order in accordance with N.J.A.C. 1:31-3.8.

5. Whenever the Committee concludes from the preliminary investigation that the circumstances, if established at an evidentiary hearing, merit disciplinary action greater than an oral or written reprimand, and that formal proceedings to that end should be instituted, the Committee shall promptly file a copy of the recommendation and the record of the Committee certified as such by its secretary with the Director. The Committee shall issue also without delay and serve upon the judge a notice advising him or her that it has filed such a recommendation with the Director.

N.J. Admin. Code § 1:31-3.8 Issuance of order

Upon receipt and review of any opinions, recommendations, and reports from the Committee under N.J.A.C. 1:31-3.7(a), the Director may proceed in accordance with N.J.A.C. 1:31-3.3 or may issue a formal complaint and order the judge to show cause why a specific sanction should not be imposed or a recommendation for removal not be sent to the Governor. The order to show cause shall require the judge to answer the complaint within 30 days of service of the complaint and order upon the judge.

History

• Amended by47 N.J.R. 1314(a), Effective 6/15/2015

N.J. Admin. Code § 1:31-3.9 Formal hearing

Unless the judge's answer to the complaint renders further formal proceedings unnecessary, a due process hearing shall be conducted by a designee of the Director. The evidentiary hearing in this matter shall begin within 30 days from the filing of the answer with the OAL. At the hearing, the OAL will be represented by the secretary to the Committee or the Director may request representation from the Office of the Attorney General. The decision of the designated hearer shall be a recommendation to the Director. The Director shall make the final decision in the matter within 10 days unless notice is provided to the judge that the time for review needs to be extended.

N.J. Admin. Code § 1:31-3.10 Confidentiality

The record before the OAL Advisory Committee shall be confidential and shall not be available to any person except in the proper discharge of official duties, unless the judge requests that the charge, proceedings, and action shall be made public. If a public reprimand is imposed by the Director, the written reprimand shall be made public. Upon the issuance of a complaint and order to show cause, the complaint and order shall be made public. The entire record shall, unless the Director otherwise orders, be made public upon the entry of a final order imposing a fine, suspension, or removal.

N.J. Admin. Code § 1:31-3.11 Judicial independence and discipline process

The methods used by the judge, but not the result arrived at by the judge in any case, may be the cause for discipline of the judge. In order to foster and encourage judicial independence, claims of error shall be left to appellate review and not be subject to discipline.

N.J. Admin. Code Tit. 1, ch. 2 RESERVED

History

• CHAPTER HISTORICAL NOTE:
• All provisions of this chapter Rules for Summary Proceedings became effective by authority of N.J.S.A. 52:14F-5e, f and g, on March 21, 1983 as R.1983 d.87. See: 15 New Jersey Register 66(a), 15 New Jersey Register 435(a). This chapter was readopted with amendments effective 3/21/1984 as R.1984 d.117. See: 16 New Jersey Register 94(a), 16 New Jersey Register 707(a). Amendments became effective 7/2/1984 as R.1984 d.285. See: 16 New Jersey Register 942(a), 16 New Jersey Register 1712(a). Further amendments became effective 10/15/1984 as R.1984 d.462. See: 16 New Jersey Register 2186(a), 16 New Jersey Register 2780(a). Further amendments to subchapter 3 became effective 11/26/1984 as R.1984 d.553. See: 16 New Jersey Register 2711(a), 16 New Jersey Register 3426(b). Subchapter 3 Hearing of the Papers was readopted pursuant to Executive Order 66(1978) with amendments effective 1/30/1985 as R.1985 d.77. See: 16 New Jersey Register 3338(a), 17 New Jersey Register 569(a). Subchapter 2, Conference Hearing was readopted pursuant to Executive Order 66(1978) effective 5/15/1985 as R.1985 d.292. See: 17 New Jersey Register 2(a), 17 New Jersey Register 1403(a).
• Amendments throughout the chapter became effective 2/18/1986 as R.1986 d.33. See: 17 New Jersey Register 2712(a), 18 New Jersey Register 414(a).

Chapter 13 MOTOR VEHICLE COMMISSION CASES

N.J. Admin. Code Tit. 1, ch. 13, subchs. 2 through 3 RESERVED

N.J. Admin. Code Tit. 1, chs. 3 through 4 RESERVED

N.J. Admin. Code Tit. 1, ch. 5 RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 5, Department of Community Affairs Council on Affordable Housing, was adopted as R.1986 d.421, effective 10/20/1986. See: 18 N.J.R. 1506(a), 18 N.J.R. 2122(a).
• Pursuant to Executive Order No. 66(1978), Chapter 5, Department of Community Affairs Council on Affordable Housing, was readopted as R.1991 d.499, effective 9/13/1991. See: 23 N.J.R. 2082(a), 23 N.J.R. 2998(a). As part of R.1991 d.499, Subchapter 20, Issue Referral from Council's Mediation Process, was repealed effective 10/7/1991.
• Pursuant to Executive Order No. 66(1978), Chapter 5, Department of Community Affairs Council on Affordable Housing, was readopted as R.1996 d.413, effective 8/7/1996. See: 28 N.J.R. 3205(a), 28 N.J.R. 4095(a).
• Chapter 5, Department of Community Affairs Council on Affordable Housing, was readopted as R.2001 d.289, effective 7/23/2001. See: 33 N.J.R. 1979(a), 33 N.J.R. 2805(a).
• Chapter 5, Department of Community Affairs Council on Affordable Housing, expired on 7/23/2006.

N.J. Admin. Code Tit. 1, ch. 6 RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 6, Sale of Motor Gasoline, was adopted pursuant to P.L. 1974, c.2, as R.1974 d.33, effective 2/11/1974. See: 6 N.J.R. 94(a). An administrative order suspending the "alternate day purchase program" was adopted as R.1974 d.75, effective 4/1/1974. See: 6 N.J.R. 162(a).
• Concurrently, Chapter 6, Sale of Motor Gasoline, was amended by R.1974 d.86, effective 4/1/1974. See: 6 N.J.R. 162(b).
• Chapter 6, Sale of Motor Gasoline, expired on 6/30/1975 upon expiration of P.L. 1974, c.2.
• Chapter 6, Department of Education Budget Hearings, was adopted as R.1986 d.342, effective 8/18/1986. See: 18 N.J.R. 1020(b), 18 N.J.R. 1699(b).
• Chapter 6, Department of Education Budget Hearings, was repealed and Chapter 6, Department of Education Budget Hearings, was adopted as new rules by R.1987 d.200, effective 5/4/1987 (operative July 1, 1987). See: 18 N.J.R. 728(a), 18 N.J.R. 1728(a), 19 N.J.R. 715(a).
• Pursuant to Executive Order No. 66(1978), Chapter 6, Department of Education Budget Hearings, was readopted as R.1992 d.213, effective 4/21/1992. See: 24 N.J.R. 321(a), 24 N.J.R. 1873(b).
• Pursuant to Executive Order No. 66(1978), Chapter 6, Department of Education Budget Hearings, was readopted as R.1997 d.158, effective 3/10/1997. See: 29 N.J.R. 282(a), 29 N.J.R. 1295(a).
• Chapter 6, Department of Education Budget Hearings, was readopted as R.2002 d.198, effective 5/30/2002. See: 34 N.J.R. 983(a), 34 N.J.R. 2309(a). Chapter 6, Department of Education Budget Hearings, expired on 5/30/2007.

N.J. Admin. Code Tit. 1, ch. 6B RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 6B, Department of Education Tenure Hearings, was adopted as R.1999 d.81, effective 3/15/1999. See: 30 N.J.R. 4307(a), 31 N.J.R. 761(a).
• Chapter 6B, Department of Education Tenure Hearings, was readopted as R.2004 d.177, effective 4/1/2004. See: 36 N.J.R. 5(a), 36 N.J.R. 2195(a).
• Subchapter 17, Consolidation and Predominant Interest, was adopted as new rules by R.2008 d.148, effective 6/16/2008. See: 40 N.J.R. 834(a), 40 N.J.R. 3618(a).
• Chapter 6B, Department of Education Tenure Hearings, was readopted as R.2009 d.229, effective 6/17/2009. As a part of R.2009 d.229, Subchapter 18 was adopted as reserved; and Subchapter 19, Settlements and Withdrawals, was adopted as new rules, effective 7/20/2009. See: 41 N.J.R. 1295(a), 41 N.J.R. 2777(a).
• In accordance with N.J.S.A. 52:14B-5.1b, Chapter 6B, Department of Education Tenure Hearings, expired on 6/17/2016. See: 43 N.J.R. 1203(a).

N.J. Admin. Code Tit. 1, ch. 6C RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 6C, Department of Education School Ethics Commission Hearings, was adopted as R.2000 d.65, effective 2/22/2000. See: 31 N.J.R. 3878(a), 32 N.J.R. 683(a).
• Chapter 6C, Department of Education School Ethics Commission Hearings, was readopted as R.2005 d.211, effective 6/6/2005. See: 37 N.J.R. 826(a), 37 N.J.R. 2465(a). Chapter 6C, Department of Education School Ethics Commission Hearings, expired on 6/6/2010.

N.J. Admin. Code Tit. 1, ch. 7 RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 7, Department of Environmental Protection Emergency Water Supply Allocation Plan Cases, was adopted as Emergency New Rule, R.1985 d.347, effective 6/11/1985 (to expire August 12, 1985). See: 17 N.J.R. 1674(a). The concurrent proposal to the emergency adoption was adopted as R.1985 d.446, effective 8/9/1985. See: 17 N.J.R. 2099(a).
• Chapter 7, Department of Environmental Protection Emergency Water Supply Allocation Plan Cases, was repealed and Chapter 7, Department of Environmental Protection Emergency Water Supply Allocation Plan Cases, was adopted as new rules by R.1987 d.200, effective 5/4/1987 (operative July 1, 1987). See: 18 N.J.R. 728(a), 18 N.J.R. 1728(a), 19 N.J.R. 715(a).
• Pursuant to Executive Order No. 66(1978), Chapter 7, Department of Environmental Protection Emergency Water Supply Allocation Plan Cases, was readopted as R.1992 d.213, effective 4/21/1992. See: 24 N.J.R. 321(a), 24 N.J.R. 1873(b).
• Pursuant to Executive Order No. 66(1978), Chapter 7, Department of Environmental Protection Emergency Water Supply Allocation Plan Cases, was readopted as R.1997 d.158, effective 3/10/1997. See: 29 N.J.R. 282(a), 29 N.J.R. 1295(a).
• Chapter 7, Department of Environmental Protection Emergency Water Supply Allocation Plan Cases, was readopted as R.2002 d.198, effective 5/30/2002. See: 34 N.J.R. 983(a), 34 N.J.R. 2309(a). Chapter 7, Department of Environmental Protection Emergency Water Supply Allocation Plan Cases, expired on 5/30/2007.

N.J. Admin. Code Tit. 1, ch. 7A RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 7A, Department of Environmental Protection, was adopted as R.1995 d.184, effective 4/3/1995. See: 26 N.J.R. 4124(a), 26 N.J.R. 4863(a), 27 N.J.R. 1399(a).
• Pursuant to Executive Order No. 66(1978), Chapter 7A, Department of Environmental Protection, was readopted as R.2000 d.175, effective 3/29/2000. See: 32 N.J.R. 647(a), 32 N.J.R. 1513(a).
• Chapter 7A, Department of Environmental Protection, was readopted as R.2005 d.178, effective 5/10/2005. See: 37 N.J.R. 696(a), 37 N.J.R. 2007(a). Chapter 7A, Department of Environmental Protection, expired on 5/10/2010.

Chapter 6A SPECIAL EDUCATION PROGRAM

N.J. Admin. Code Tit. 1, ch. 6A, subchs. 6 through 8 RESERVED

N.J. Admin. Code Tit. 1, chs. 8 through 9 RESERVED

Chapter 6A SPECIAL EDUCATION PROGRAM

N.J. Admin. Code Tit. 1, ch. 6A, subch. 11 RESERVED

N.J. Admin. Code Tit. 1, ch. 12B RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 12B, Department of Labor Contractor Debarment Cases, was adopted as R.1996 d.89, effective 2/20/1996. See: 27 N.J.R. 4475(a), 28 N.J.R. 1197(a).
• Pursuant to Executive Order No. 66(1978), Chapter 12B, Department of Labor Contractor Debarment Cases, expired on 2/20/2001.
• Chapter 12B, Department of Labor Contractor Debarment Cases, was adopted as new rules by R.2001 d.156, effective 5/21/2001. See: 33 N.J.R. 615(a), 33 N.J.R. 1573(a).
• Chapter 12B, Department of Labor Contractor Debarment Cases, expired on 5/21/2006.

N.J. Admin. Code Tit. 1, ch. 12C RESERVED

History

• CHAPTER HISTORICAL NOTE:
• Chapter 12C, Department of Labor Vocational Rehabilitation Cases, was adopted as R.1997, d.474, effective 11/3/1997. See: 29 N.J.R. 3758(a), 29 N.J.R. 4677(a).
• Chapter 12C, Department of Labor Vocational Rehabilitation Cases, was renamed "Department of Labor and Commission for the Blind and Visually Impaired Vocational Rehabilitation Cases" by R.1999 d.293, effective 9/7/1999. See: 31 N.J.R. 1552(a), 31 N.J.R. 2604(a).
• Subchapter 2, Definitions, was adopted as R.1999 d.293, effective 9/7/1999. See: 31 N.J.R. 1552(a), 31 N.J.R. 2604(a).
• Chapter 12C, Department of Labor and Commission for the Blind and Visually Impaired Vocational Rehabilitation Cases, was readopted as R.2003 d.153 effective 3/17/2003. See: 34 N.J.R. 4017(a), 35 N.J.R. 1539(a).
• Chapter 12C, Department of Labor and Commission for the Blind and Visually Impaired Vocational Rehabilitation Cases, expired on 3/17/2008.

N.J. Admin. Code Tit. 1, ch. 12D RESERVED

Chapter 4A CIVIL SERVICE COMMISSION HEARINGS

N.J. Admin. Code Tit. 1, ch. 4A, subchs. 11 through 13 RESERVED

Chapter 11 INSURANCE FILING HEARINGS

N.J. Admin. Code Tit. 1, ch. 11, subchs. 2 through 14 RESERVED

Chapter 4A CIVIL SERVICE COMMISSION HEARINGS

N.J. Admin. Code Tit. 1, ch. 4A, subchs. 15 through 16 RESERVED

Chapter 4B CIVIL SERVICE COMMISSION LAW ENFORCEMENT OFFICER AND FIREFIGHTER CASES

N.J. Admin. Code Tit. 1, ch. 4B, subchs. 15 through 17 RESERVED

N.J. Admin. Code Tit. 1, chs. 15 through 18 RESERVED

Chapter 10 FAMILY DEVELOPMENT HEARINGS

N.J. Admin. Code Tit. 1, ch. 10, subchs. 20 through 21 RESERVED

N.J. Admin. Code Tit. 1, chs. 22 through 29 RESERVED

Chapter 1 UNIFORM ADMINISTRATIVE PROCEDURE RULES

N.J. Admin. Code Tit. 1, ch. 1, app APPENDIX APPENDIX

CODE OF CONDUCT FOR ADMINISTRATIVE LAW JUDGES

PREAMBLE

The Code of Judicial Conduct for Administrative Law Judges is intended to establish basic ethical conduct standards for administrative law judges. The Code is intended to govern the conduct of these administrative law judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct. This Code is based upon the New Jersey Code of Judicial Conduct as adopted by the New Jersey Supreme Court, effective September 1, 2016.

The text of the Canons is authoritative. The Commentary, by explanation and example, provides guidance with respect to the purpose and meaning of the Canons. The Commentary is not intended as a statement of additional rules. When the text uses "shall" or "shall not," it is intended to impose binding obligations, the violation of which can result in disciplinary action. When "should" or "should not" is used, the text is a statement of what is or is not appropriate conduct, but not a binding rule under which a judge may be disciplined. When "may" is used, it denotes permissible discretion or, depending on the context, it refers to action that is not covered by specific proscriptions.

The Canons are rules of reason. They should be applied consistent with constitutional requirements, statutes, administrative rules, and decisional law and in the context of all relevant circumstances. The Code is to be construed so as not to impinge on the essential independence of judges in making judicial decisions. The Code is designed to provide guidance to administrative law judges and to provide a structure for regulating conduct.

CANON 1

AN INDEPENDENT AND IMPARTIAL JUDICIARY IS INDISPENSABLE TO JUSTICE. AN ADMINISTRATIVE LAW JUDGE, THEREFORE, SHALL UPHOLD AND SHOULD PROMOTE THE INDEPENDENCE, INTEGRITY, AND IMPARTIALITY OF THE ADMINISTRATIVE JUDICIARY

RULE 1.1 Independence, Integrity, and Impartiality of the Administrative Judiciary

An administrative law judge shall participate in establishing, maintaining, and enforcing, and shall personally observe, high standards of conduct, so that the integrity, impartiality, and independence of the administrative judiciary is preserved. This Code shall be construed and applied to further these objectives.

RULE 1.2 Compliance with the Law

An administrative law judge shall respect and comply with the law.

Commentary: Violations of this Code, or violations of law or N.J.A.C. 1:1 through 1:31 that reflect adversely on a judge's honesty, impartiality, temperament, or fitness constitute a failure to respect and comply with the law.

CANON 2

AN ADMINISTRATIVE LAW JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY

RULE 2.1 Promoting Confidence in the Administrative Judiciary

An administrative law judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the administrative judiciary, and shall avoid impropriety and the appearance of impropriety.

Commentary: Public confidence in the administrative judiciary is eroded by irresponsible or improper conduct by judges. An administrative law judge must avoid all impropriety and appearance of impropriety and must expect to be the subject of constant public scrutiny. This principle applies to both the professional and personal conduct of an administrative law judge. An administrative law judge must, therefore, accept restrictions on personal conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

Actual impropriety is conduct that reflects adversely on the honesty, impartiality, temperament, or fitness to serve as a judge.

With regard to the judicial conduct of an administrative law judge, an appearance of impropriety is created when a reasonable, fully informed person observing the judge's conduct would have doubts about the judge's impartiality. With regard to the personal conduct of an administrative law judge, an appearance of impropriety is created when an individual who observes the judge's personal conduct has a reasonable basis to doubt the judge's integrity and impartiality.

RULE 2.2 External Influences on Judicial Conduct

Administrative law judges shall decide cases according to the law and facts. Administrative law judges shall not permit family, social, political, financial, or other relationships or interests to influence their judicial conduct or judgment.

RULE 2.3 Use of the Prestige of Judicial Office

(A) An administrative law judge shall not lend the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.

(B) An administrative law judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge. Commentary: It is improper for administrative law judges to use or attempt to use their position to gain personal advantage or deferential treatment of any kind. For example, it would be improper for an administrative law judge to allude to his or her judicial status to gain favorable treatment in encounters with others, such as persons in official positions and members of the public.

The Office of Administrative Law has determined that in certain limited situations an administrative law judge may write a letter of recommendation for a current or former law clerk or intern on Office of Administrative Law letterhead; in all other situations, if a letter of recommendation is appropriate, it should be on the administrative law judge's personal stationery. The situations in which the administrative law judge may use the Office of Administrative Law letterhead for letters of recommendation for law clerks or interns are as follows: (a) when the letter is addressed to another state or federal government official (this would include letters regarding subsequent additional clerkships or internships); (b) when the letter is addressed to a law school, university, or college in connection with a possible teaching position for the law clerk or intern; and (c) when a potential employer requests a recommendation.

Administrative law judges may participate in the process of judicial selection or judicial reappointment by cooperating with appointing authorities and screening committees, and by responding to inquiries from such entities concerning the professional qualifications of a person being considered for judicial office.

RULE 2.4 Testifying as a Character Witness

An administrative law judge shall not testify as a character witness in a judicial, administrative, or other adjudicatory proceeding, or otherwise vouch for the character of a person in a legal proceeding.

Commentary: An administrative law judge must not testify voluntarily as a character witness because to do so may lend the prestige of the office in support of the party for whom the administrative law judge testifies. Moreover, when an administrative law judge testifies as a witness, a lawyer who regularly appears before the judge may be placed in the awkward position of cross-examining the judge. An administrative law judge may, however, testify when properly summoned. Except in unusual circumstances where the demands of justice require, an administrative law judge should discourage a party from requiring the judge to testify as a character witness.

CANON 3

AN ADMINISTRATIVE LAW JUDGE SHALL PERFORM THE DUTIES OF THE OFFICE IMPARTIALLY AND DILIGENTLY

RULE 3.1 Precedence of Judicial Office

The judicial duties of an administrative law judge shall take precedence over all other activities. Judicial duties include the duties of the office prescribed by law, this Code, N.J.A.C. 1:1 through 1:31, and administrative directive.

RULE 3.2 Competence

An administrative law judge shall maintain professional competence.

Commentary: Competence in the performance of judicial duties requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary to perform judges' responsibilities of the office.

RULE 3.3 Judicial Independence

An administrative law judge shall be unswayed by partisan interest, public clamor, or fear of criticism.

Commentary: An administrative law judge shall decide cases without regard to whether particular laws or litigants are popular or unpopular with the public, the media, government officials, or the judge's friends or family. Confidence in the Office of Administrative Law is eroded if judicial decision-making is perceived to be subject to outside influences.

RULE 3.4 Decorum

An administrative law judge shall maintain order and decorum in judicial proceedings.

RULE 3.5 Demeanor

An administrative law judge shall be patient, dignified, and courteous to litigants, witnesses, attorneys, representatives, and others with whom the judge deals in an official capacity, and shall not permit lawyers, court officials, and others subject to the judge's direction and control to display impatience or discourtesy or to detract from the dignity of the court.

RULE 3.6 Bias and Prejudice

(A) An administrative law judge shall be impartial and shall not discriminate because of race, creed, color, sex, gender identity or expression, religion/religious practices or observances, national origin/nationality, ancestry, language, ethnicity, disability or perceived disability, atypical hereditary cellular or blood trait, genetic information, status as a veteran or disabled veteran of, or liability for service in, the Armed Forces of the United States, age, affectional or sexual orientation, marital status, civil union status, domestic partnership status, socioeconomic status, or political affiliation.

(B) An administrative law judge shall require attorneys in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice on the bases specified in Rule 3.6(A), against parties, witnesses, attorneys, representatives, or others. This section does not preclude legitimate advocacy when the listed bases are issues in or relevant to the proceeding.

(C) An administrative law judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including, but not limited to, bias, prejudice, or harassment on the bases specified in Rule 3.6(A), and shall not permit court staff, court officials, or others subject to the judge's direction and control to do so. This section does not preclude reference to the listed bases when they are issues in or relevant to the proceeding.

Commentary: The prohibited bases in this rule are primarily drawn from the Law Against Discrimination, et seq. N.J.S.A. 10:5-1

Examples of manifestations of bias or prejudice include, but are not limited to, epithets, slurs, demeaning nicknames, negative stereotyping, attempted humor based on stereotypes, threatening, intimidating, or hostile acts, suggestions of connections between race, ethnicity, or nationality and crime, and irrelevant references to personal characteristics. Even facial expressions and body language can convey to parties, representatives, and attorneys in the proceeding, the media, and others an appearance of bias or prejudice. A judge must avoid conduct that may reasonably be perceived as prejudiced or biased.

Harassment is verbal or physical conduct that denigrates or shows hostility or aversion toward a person on prohibited bases listed in Rule 3.6(A).

Sexual harassment includes, but is not limited to, sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome.

RULE 3.7 Ensuring the Right to Be Heard

An administrative law judge shall accord to every person who is legally interested in a proceeding, or to that person's attorney or representative, the right to be heard according to law or court rule.

Commentary: An administrative law judge may make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.

RULE 3.8 Ex Parte Communications

Except as authorized by law or N.J.A.C. 1:1 through 1:31, a judge shall not initiate or consider ex parte or other communications concerning a pending or impending proceeding.

Commentary: The proscription against communications concerning a proceeding generally includes communications with or from attorneys, representatives, and other persons who are participants in the proceeding. It does not preclude an administrative law judge from consulting with other administrative law judges on pending matters, provided that the judge avoids ex parte discussions of a case with judges who have previously been disqualified from hearing the matter, or from consulting with court personnel whose function is to aid the judge in carrying out adjudicative responsibilities.

In general, settlement discussions, discussions regarding scheduling, and an administrative law judge's handling of emergent issues are not considered to constitute ex parte communications in violation of this rule.

RULE 3.9 Diligence

An administrative law judge shall dispose promptly of the business of the court.

Commentary: In disposing of matters promptly, efficiently, and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay. Prompt disposition of the judge's business requires a judge to devote adequate time to his or her duties, to be punctual in attending hearings and expeditious in determining matters under submission, and to insist that other subordinate officials, litigants, and their representatives cooperate with the judge to that end.

RULE 3.10 Judicial Statements on Pending and Impending Cases

An administrative law judge shall not publicly comment about a pending or impending proceeding in any court and shall not permit court personnel subject to the judge's direction and control to do so. This rule does not prohibit judges from making public statements in the course of their official duties or from explaining to the public the procedures of agencies.

Commentary: "Agency personnel" does not include the lawyers in a proceeding before a judge. The conduct of lawyers is governed by Rule 3.6 of the Rules of Professional Conduct.

Rule 3.10 is not intended to preclude participation in an association of judges merely because such association makes public comments about a pending or impending proceeding in the administrative process. The subsection is directed primarily at public comments by a judge concerning a proceeding before another judge.

RULE 3.11 Broadcasting

An administrative law judge should permit broadcasting, televising, recording, and the taking of photographs in the courtroom and areas immediately adjacent thereto during sessions of court and during recesses between sessions only in accordance with the guidelines promulgated by the Supreme Court and subject to the restrictions contained therein; except that where there is a conflict between the guidelines promulgated by the Supreme Court and the provisions of N.J.A.C. 1:1 through 1:31, the provisions of N.J.A.C. 1:1 through 1:31 shall govern.

RULE 3.12 Judicial Administration

An administrative law judge shall diligently discharge the administrative responsibilities of the office without bias or prejudice, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.

RULE 3.13 Supervisory Duties

An administrative law judge shall require staff, court officials, and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.

RULE 3.14 Responding to Administrative Judicial and Lawyer Misconduct

An administrative law judge has the following disciplinary responsibilities:

(A) An administrative law judge who receives reliable information indicating a substantial likelihood that another judge has committed a violation of this Code should take appropriate action. An administrative law judge having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge's fitness for office shall inform the appropriate authority.

(B) An administrative law judge who receives reliable information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct should take appropriate action. An administrative law judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority. (See also N.J.A.C. 1:1-5.3)

(C) Acts of an administrative law judge in the discharge of disciplinary responsibilities under this rule shall be absolutely privileged. Commentary: Appropriate action includes notification to the Director/Chief Administrative Law Judge, Deputy Director of the Office of Administrative Law, or Administrative Law Assignment Judge.

RULE 3.15 Disqualification

(A) Administrative law judges shall hear and decide all assigned matters unless disqualification is required by this rule or other law.

(B) Administrative law judges shall disqualify themselves in proceedings in which their impartiality or the appearance of their impartiality might reasonably be questioned, including, but not limited to, the following:

(1) Personal bias, prejudice, or knowledge. Administrative law judges shall disqualify themselves if they have a personal bias or prejudice toward a party or a party's lawyer or have personal knowledge of disputed evidentiary facts involved in the proceeding;

(2) Financial interest. Administrative law judges shall disqualify themselves if they individually or as a fiduciary have a financial interest in an enterprise related to the litigation. Subject to (2)(a)(i), (ii), (iii), and (iv) below, a financial interest means ownership of a legal or equitable interest, however small, or a relationship as director or advisor or other participation in the affairs of a party.

(a) Financial interest does not include:

(i) Ownership of an interest in securities held by a mutual fund or common investment fund, or ownership of securities held in managed funds, provided, in respect of managed funds, that no investment discretion has been retained by the judge or the judge's spouse, civil union partner, or domestic partner;

(ii) Ownership in securities held by an educational, religious, charitable, fraternal, or civic organization in which the judge holds an office;

(iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, unless there is a reasonable possibility that the value of the interest will be affected by the judge's decision; or

(iv) Ownership of an interest in government securities, unless there is a reasonable possibility that the value of the interest will be affected by the judge's decision;

(3) Personal Relationships. Administrative law judges shall disqualify themselves if:

(a) The judge or the judge's spouse, civil union partner, or domestic partner, or a first cousin or more closely related relative to either of them, or the spouse, civil union partner, or domestic partner of such relative, or to the judge's knowledge, a second cousin or related relative to either of them, as defined below, or the spouse, civil union partner, or domestic partner of such relative is a party to the proceeding or is likely to be called as a witness in the proceeding.

(b) The judge or the judge's spouse, civil union partner, or domestic partner, or a first cousin or more closely related relative to either of them, or the spouse, civil union partner, or domestic partner of such relative is a lawyer or representative for a party.

(c) The judge or the judge's spouse, civil union partner, or domestic partner, or any member of the judge's family residing in the judge's household has an interest in the litigation, including among other things, a financial interest, as defined by Rule 3.15(B)(2), in an enterprise related to the litigation.

(d) The administrative law judge has a social relationship with a party, a lawyer for a party, or the representative for a party of a nature that would give rise to partiality or the appearance of partiality;

(4) Prior Professional Relationships. Administrative law judges shall disqualify themselves based on their prior professional relationships as follows:

(a) In proceedings in which the judge served as a lawyer in the matter in controversy or in which the judge has been a witness or may be called as a witness;

(b) In proceedings in which a party was a former private client for whose matter the judge had primary responsibility, disqualification is necessary for a period of seven years following the conclusion of that representation. However, disqualification for a period of time in excess of seven years from the conclusion of the representation may be required in certain circumstances. In making that determination, a judge should consider, among other relevant factors:

1. the scope of the representation, including, but not limited to, the cumulative number of matters handled by the judge, whether a continuous fiduciary relationship existed with the client over an extended period of time, and the length of time that has elapsed since the conclusion of that representation;

2. the duration of the representation;

3. the nature of the representation, including, but not limited to, the acrimonious nature of the underlying litigation and any information acquired about the client as a consequence of that representation that could cast doubt on the judge's impartiality; and

4. in respect of a corporate client, whether the principals of the entity are the same as existed during the representation.

For purposes of this rule, an insurance company that retained the administrative law judge to defend its insureds in tort actions shall not be considered a former client of the judge.

(c) In proceedings in which a party is a governmental entity that previously employed the judge:

(i) for a period of two years following judicial appointment if the judge was employed as a State government attorney, county prosecutor, or assistant county prosecutor; provided, however, that prior employment as a State government attorney with broad supervisory authority shall not disqualify judges who had no actual involvement in the matter while in government service; and

(ii) for a period of five years following judicial appointment if the judge represented a local government entity;

(d) In proceedings in which the judge's former law firm is involved, for a period of at least seven years following termination of the relationship or until all financial obligations of the law firm to the judge are satisfied, whichever is longer; and/or

(e) In proceedings in which the judge's former law clerk is appearing or has signed papers, for a period of six months following termination of the clerkship;

(5) Post-Retirement Employment. Administrative law judges shall disqualify themselves if the judge has initiated contact about or discussed or negotiated his or her post-retirement employment with any party, attorney, or law firm involved in any matter pending before the judge in which the judge is participating personally and substantially, regardless of whether or not the discussions or negotiations lead to employment of the judge by the party, attorney, or law firm; and/or

(6) Irrespective of the time periods specified in this rule, administrative law judges shall disqualify themselves whenever the nature of the relationship to a party or a lawyer, because of a continuing social relationship or otherwise, would give rise to partiality or the appearance of partiality.

(C) A disqualification required by this rule is not subject to the parties' waiver. The administrative law judge shall, however, disclose to the parties any circumstance not deemed by the judge to require disqualification, but which might be regarded by the parties as affecting the judge's impartiality.

(D) An administrative law judge shall address disqualification or issues of recusal and disqualification promptly upon recognition of grounds that would give rise to partiality or the appearance of partiality.

(E) An administrative law judge shall not be automatically disqualified upon learning that a complaint has been filed against the judge with the Director of the Office of Administrative Law, litigation naming the judge as a party, or any other complaint about the judge by a party. If, however, the judge concludes that there is a reasonable basis to question the court's impartiality, the judge may recuse himself or herself. An administrative law judge shall promptly disclose to the parties to the pending litigation that a complaint has been filed or made.

Commentary: Administrative law judges must be available to decide the matters that come before the court. Although there are times when disqualification is necessary to protect the rights of litigants and preserve public confidence in the independence, integrity, and impartiality of the Office of Administrative Law, unwarranted disqualification may bring public disfavor to the Office and to the judge personally. The dignity of the Office, the judge's respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge's colleagues require that a judge not use disqualification to avoid cases that present difficult, controversial, or unpopular issues.

In determining whether disqualification is necessary, the applicable standard is as follows: Would a reasonable, fully informed person have doubts about the judge's impartiality. DeNike v. Cupo, 196 N.J. 502.

For purposes of this rule, as with New Jersey Court Rule N.J.A.C. 1:12-1, a "first cousin or more closely related relative" includes first cousin, aunt or uncle, niece or nephew, grandparent, grandchild, child, parent, or sibling. A "second cousin or related relative" includes a second cousin, great aunt or uncle, first cousin once removed (for example., a first cousin's child or a great aunt or uncle's child), great grandparent, or grandniece or grandnephew, or great grandchild. Judges shall keep informed about their personal and fiduciary interests and make reasonable efforts to keep informed about the personal financial interests of their spouse, civil union partner, or domestic partner, and family members residing in the judge's household. "Knowledge" means actual knowledge of the fact in question. However, knowledge may be inferred from the circumstances.

The fact that a lawyer in a proceeding is affiliated with a law firm with which a lawyer- relative of the administrative law judge is affiliated does not itself disqualify the judge. If, however, the judge's impartiality might reasonably be questioned under paragraph (B), or the lawyer- relative is known by the judge to have an interest in the law firm that could be substantially affected by the proceeding under paragraph (B)(3)(c), the judge's disqualification is required.

In making such a determination, an administrative law judge should consider, among other relevant factors: (1) the degree of relationship between the judge and the relative affiliated with the firm (for example, sister, nephew, nephew's spouse); (2) the closeness of the relationship between the judge and the relative; (3) whether the relative's affiliation with the firm was known to the judge without counsel making the court aware of such affiliation; (4) the size of the law firm the relative is affiliated with; (5) the relative's role in the law firm (for example, owner or equity interest holder, associate, intern); (6) the relative's relationship, if any, to the lawyer in the proceeding; (7) whether the law firm represents a named party to the action as opposed to an entity proceeding (or seeking to proceed) as amicus curiae; (8) the timing of the law firm's commencement of participation in the proceeding; (9) whether the law firm is providing its services pro bono, if such an arrangement is known by the judge; and (10) the nature of the proceedings.

( Note that this comment addresses only whether a lawyer-relative renders the judge disqualified from hearing all matters involving the law firm with which the relative is affiliated. Nothing in this comment should be read to permit a judge to hear proceedings in which a lawyer in the case is related (as first cousin or closer) to the judge or the judge's spouse, civil union partner, or domestic partner.)

In evaluating whether a judge should be disqualified from proceedings in which a party was a former private client of the judge for a period of time in excess of seven years from the conclusion of the representation, judges should be guided by DeNike v. Cupo, 196 N.J. 502.

A lawyer in a governmental agency does not necessarily have an association with other lawyers employed by that agency within the meaning of this rule; judges formerly employed by governmental agencies, however, should disqualify themselves in a proceeding if their impartiality might reasonably be questioned because of the association.

An administrative law judge may not initiate contact about or discuss or negotiate his or her post-retirement employment with any party, attorney, or law firm involved in any matter pending before the judge in which the judge is participating personally and substantially. A matter pending before the judge includes any matter or aspect of a matter that has not been completed, even if only the performance of a ministerial act remains outstanding, such as signing a consent order or a similar order. If the subject is raised in any fashion, the judge must put a halt to the discussion or negotiation at once, rebuff any offer, and disclose what occurred on the record in the presence of all parties and counsel. The judge, all parties, and attorneys on the record should then evaluate objectively whether any further relief is needed.

A judge who engages in post-retirement employment negotiations or discussions while still on the bench with any party, attorney, or law firm that does not have a matter pending before the judge, must do so in a way that minimizes the need for disqualification, does not interfere with the proper performance of the judge's judicial duties, and upholds the integrity of the Office of Administrative Law. A judge should delay starting any such negotiations or discussions until shortly before his or her planned retirement, and should discuss post-retirement employment opportunities with the fewest possible number of prospective employers. A judge should also inform the Director/Chief Judge of the Office of Administrative Law about the post-retirement employment negotiations or discussions to the extent that such negotiations or discussions will interfere with the judge's regular assignments.

A judge should not initiate contact about or discuss or negotiate his or her post-retirement employment with a party, attorney, or law firm that has in the past appeared before the judge until the passage of a reasonable interval of time, so that the judge's impartiality in the handling of the case cannot reasonably be questioned. What is reasonable depends on the circumstances. For instance, it may be that an uncontested matter resolved swiftly by entry of a default judgment; such a circumstance may not call for the passage of a lengthy intervening period of time. Prolonged or particularly acrimonious litigation may caution in favor of a longer delay. Actions likely to result in continuing post-judgment matters would also warrant a lengthier intervening period of time.

The rule of necessity may override the rule of disqualification. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In matters that require immediate action, the judge must disclose on the record the basis for possible disqualification and make reasonable efforts to transfer the matter to another judge as soon as practicable.

The provision in Rule 3.15(C) is designed to avoid the possibility that a party or lawyer will feel coerced into consent.

CANON 4

AN ADMINISTRATIVE LAW JUDGE MAY ENGAGE IN ACTIVITIES TO IMPROVE THE LAW, THE LEGAL SYSTEM, AND THE ADMINISTRATION OF JUSTICE

RULE 4 Activities Related to the Administrative Judicial Function

An administrative law judge, subject to the proper performance of administrative judicial duties, may engage in the following related activities if, in doing so, the administrative law judge does not cast doubt on his or her capacity to decide impartially any issue that may come before the court:

(A) An administrative law judge may speak, write, lecture, and participate in other activities concerning the law, the legal system, and the administration of justice.

(B) An administrative law judge may teach concerning the law, the legal system, and the administration of justice.

(C) An administrative law judge may serve as a member, officer, or director of a nongovernmental organization devoted to the improvement of the law, the legal system, or the administration of justice, but may not assist the organization in raising funds or participate in their management and investment. A full-time judge may participate as a member of a local or state bar association, but may not serve as an officer or trustee, and may only serve on committees of the association subject to such conditions as determined by the Supreme Court.

(D) A judge may encourage lawyers to provide pro bono legal services.

Commentary: An administrative law judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of the justice system. To the extent that time permits, a judge is encouraged to do so through a bar association, judicial conference, other organization dedicated to the improvement of the law or through an appropriate administrative judicial official charged with administrative responsibility.

CANON 5

AN ADMINISTRATIVE LAW JUDGE SHALL SO CONDUCT THE JUDGE'S EXTRAJUDICIAL ACTIVITIES AS TO MINIMIZE THE RISK OF CONFLICT WITH ADMINISTRATIVE JUDICIAL OBLIGATIONS

RULE 5.1 Extrajudicial Activities in General

(A) Administrative law judges shall conduct their extrajudicial activities in a manner that would not cast reasonable doubt on the judge's capacity to act impartially as a judge, demean the Office of Administrative Law, or interfere with the proper performance of administrative judicial duties.

(B) An administrative law judge shall not:

(1) Participate in activities that can be reasonably anticipated to lead to frequent disqualification;

(2) Participate in activities that would appear to reasonable, fully informed persons to undermine the administrative law judge's independence, integrity, or impartiality;

(3) Make use of court premises, staff, stationery, equipment, or other resources for extrajudicial activities, except for incidental use involving activities that concern the law, the legal system, or the administration of justice, or unless such additional use is permitted by law, administrative directive, or Office of Administrative Law policy. De minimis or other incidental personal use of judiciary equipment or facilities, such as telephones, computers, scanners, fax machines, and copiers, do not violate this rule.

(C) Upon notice to and approval by the Director of the Office of Administrative Law, an administrative law judge may appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system or the administration of justice.

(D) An administrative law judge may communicate with government officials on matters concerning the administration of justice within the judge's official responsibility.

(E) An administrative law judge may act pro se in a matter involving the judge's legal or economic interests, or when the judge is acting in a fiduciary capacity as permitted in Rule 5.8.

RULE 5.2 Avocational Activities

A judge may write, lecture, teach, speak, and participate on non-legal subjects, and engage in the arts, sports, and other social and recreational activities provided these activities do not detract from the dignity of the judicial office or interfere with the performance of administrative judicial duties.

RULE 5.3 Affiliation with Discriminatory Organizations

(A) An administrative law judge shall not hold membership in any organization that practices invidious discrimination on any of the bases prohibited by Rule 3.6(A)

(B) An administrative law judge shall not accept benefits from or use the facilities of an organization if the judge knows or should know that the organization practices invidious discrimination on any of the bases prohibited by Rule 3.6(A), or as otherwise proscribed by law.

Commentary: An administrative law judge's membership in an organization that practices invidious discrimination creates the perception that the judge's impartiality is impaired.

An organization is generally said to discriminate invidiously if it arbitrarily excludes from membership, on the bases prohibited by Rule 3.6(A), persons who would otherwise be eligible for admission. Whether an organization practices invidious discrimination cannot be determined from an examination of an organization's current membership rolls, but rather depends on how the organization selects members, as well as other relevant factors, including, but not limited to, whether the organization is dedicated to religious, ethnic, or cultural values of legitimate common interest to its members. Organizations dedicated to the preservation of religious, spiritual, charitable, civic, or cultural values that do not stigmatize any excluded persons are not considered to discriminate invidiously.

When an administrative law judge learns that an organization to which the judge belongs engages in invidious discrimination, the judge must resign immediately from the organization.

RULE 5.4 Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities

An administrative law judge may participate in civic and charitable activities that do not reflect adversely on the judge's impartiality or interfere with the performance of administrative judicial duties. A judge may serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization whose purpose is not to advance the economic or political advantage of its members, subject to the following limitations:

(A) An administrative law judge shall not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversarial proceedings in any court.

(B) An administrative law judge shall not solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of the Office of Administrative Law for that purpose. A judge shall not be listed as an officer, director, or trustee of such an organization in any letters or other documents used in such solicitations. A judge shall not be a speaker or the guest of honor at an organization's fundraising events, but may attend such events and contribute to such organizations.

(C) An administrative law judge shall not give investment advice to such an organization, nor may a judge serve on its board of directors or trustees, if the board has the responsibility for approving investment decisions.

(D) An administrative law judge's name, but not a judge's position and title, may appear on the organization's letterhead and in literature regarding that organization.

Commentary: The changing nature of some organizations and their relationship to the law makes it necessary for judges to reexamine regularly the activities of each organization with which they are affiliated to determine whether the relationship should be continued.

Administrative law judges shall inform organizations of the limitations associated with their participation in educational, religious, charitable, fraternal, or civic organizations and activities. Specific prohibitions include identification of a judge's position and title on the letterhead of an organization, regardless of the intended use of that letterhead, and any involvement of a judge in the solicitation of funds for the organization.

A judge's participation in an organization devoted to law-related activities is governed by Canon 4.

RULE 5.5 Financial, Business, or Remunerative Activities

(A) Administrative law judges shall refrain from financial and business dealings that tend to reflect adversely on their impartiality, interfere with the proper performance of judicial duties, exploit the judicial position, or involve the judge in transactions with lawyers or persons likely to come before the Office of Administrative Law.

(B) Administrative law judges may hold investments, including real estate, but shall not serve as an officer, director, manager, advisor, or employee of any business, except upon notice to and approval by the Director of the Office of Administrative Law.

(C) Administrative law judges should manage their investments and other financial interests to minimize the number of cases in which they are disqualified.

RULE 5.6 Acceptance of Gifts, Loans, Bequests, Benefits, or Other Things of Value

Neither an administrative law judge nor a member of the judge's family residing in the same household should accept a gift, bequest, favor, or loan from anyone, except as follows:

(A) An administrative law judge may accept a gift of nominal value incident to a public testimonial; books supplied by publishers on a complimentary basis for official use; or an invitation to the judge to attend a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice, except as limited by Canon 6, Rule 6;

(B) An administrative law judge may accept gifts, loans, bequests, benefits, or other things of value from persons whose appearance or interest in a proceeding pending or impending before the judge would in any event require disqualification of the judge under Rule 3.16, including Rule 3.16(B)(6), which requires disqualification of a judge when the nature of the judge's relationship to a party or an attorney would give rise to partiality or the appearance of partiality;

(C) An administrative law judge or a member of the judge's family residing in the same household may accept ordinary social hospitality; gifts, favors, or commercial loans made in the regular course of business on the same terms available to the general public; or a scholarship or fellowship awarded on the same terms applied to other applicants;

(D) An administrative law judge or a member of the judge's family residing in the same household may accept any other gift, bequest, favor, or loan, only if the donor is not a party or other person whose interests have come or are likely to come before the judge.

(E) For the purposes of this rule, "member of the judge's family residing in the same household" means any relative of an administrative law judge by blood or marriage, civil union partner, domestic partner, or a person treated by a judge as a member of the family, who resides in the same household as the judge.

RULE 5.7 Disclosure of Information

Information acquired by an administrative law judge in an administrative judicial capacity shall not be used or disclosed by the judge in financial dealings or for any purpose not related to judicial duties.

Commentary: In the course of performing administrative judicial duties, an administrative law judge may acquire information of commercial or other value that is unavailable to the public. Judges shall not reveal or use such information for personal gain or for any purpose unrelated to their administrative judicial duties.

This rule is not intended to affect a judge's ability to act on information as necessary to protect the health or safety of the judge or a member of a judge's family, court personnel, or other judicial officers when consistent with other provisions of this Code.

RULE 5.8 Fiduciary Activities

An administrative law judge shall not serve as an executor, administrator, trustee, guardian, or other fiduciary, except for the estate, trust, or person of a member of the judge's family, and then only when such service will not interfere with the proper performance of judicial duties. "Member of the judge's family" includes a spouse, civil union partner, domestic partner, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains or maintained a familial relationship. As a family fiduciary a judge is subject to the following restrictions:

(A) The administrative law judge shall not serve as a fiduciary if that service is likely to result in litigation that would ordinarily come before the judge, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves or under its appellate jurisdiction.

(B) While acting as a fiduciary for a member of the judge's family, an administrative law judge is subject to the same restrictions on financial activities that apply to the judge in a personal capacity.

(C) On becoming an administrative law judge, persons serving as fiduciaries shall comply with this rule as soon as reasonably practicable, upon notice to and approval by the Director of the Office of Administrative Law.

Commentary: When an administrative law judge who is a beneficiary of an estate serves as an executor or administrator as permitted by this rule and receives a fee solely for the purpose of reducing the tax liability of the estate, receipt of that fee does not constitute "compensation" under Canon 6.

RULE 5.9 Serving as Arbitrator or Mediator

An administrative law judge shall not act as an arbitrator or mediator or perform other judicial functions apart from the judge's official duties unless expressly authorized by law.

Commentary: This Rule does not prohibit an administrative law judge from participating in arbitration, mediation, or settlement conferences performed as part of assigned judicial duties. Rendering dispute resolution services apart from those duties is prohibited unless it is expressly authorized by law.

RULE 5.10 Practice of Law

An administrative law judge shall not practice law, with or without compensation.

RULE 5.11 Appointments to Governmental Positions

An administrative law judge shall not accept appointment to a governmental committee, commission, or other position, except with prior approval of the Director of the Office of Administrative Law.

CANON 6

AN ADMINISTRATIVE LAW JUDGE SHALL NOT RECEIVE COMPENSATION FOR QUASI-JUDICIAL AND EXTRAJUDICIAL ACTIVITIES

RULE 6 Compensation for Quasi-Judicial and Extrajudicial Activities

(A) Except as otherwise provided in (B) below, an administrative law judge shall not receive compensation for quasi-judicial and extrajudicial activities permitted by this Code, but may receive reimbursement of actual expenses that the judge reasonably incurred for travel, food, and lodging, provided that the source or amount of such reimbursement, or the location of the activity, does not give the appearance of influencing the judge in the exercise of judicial duties or otherwise create an appearance of impropriety.

(B) Upon notice to, and approval by, the Director of the Office of Administrative Law, an administrative law judge may receive compensation for teaching at law schools or colleges, provided that the source of the payment does not give the appearance of impropriety.

CANON 7

AN ADMINISTRATIVE LAW JUDGE SHALL REFRAIN FROM POLITICAL ACTIVITY

RULE 7 Political Activity

(A) An administrative law judge shall not engage in any political activity, including, but not limited to:

(1) Holding membership or office in a political organization;

(2) Making speeches for a political organization or candidate, or publicly endorsing a candidate for public office;

(3) Attending political functions that are likely to be considered as political in nature; or

(4) Soliciting funds, paying an assessment, or making a contribution to a political organization or candidate, or purchasing tickets for political party dinners or other functions.

(B) An administrative law judge shall resign from office when the judge becomes a candidate for an elective public office or is nominated thereto. Commentary: The proscription against membership in a political organization does not prohibit an administrative law judge from registering with a political party to vote.

Applicability

All administrative law judges, including temporary assignment administrative law judges and administrative law judges on recall, shall comply with the Code of Conduct for Administrative Law Judges.

History

• Amended by 50 N.J.R. 2229(a), effective 11/5/2018