OAH Chief Judge Activates Emergency Hearings-Related Waiver

Due to the state of emergency that has been declared by North Carolina’s Governor in response to the COVID-19 crisis, the Director of the Office of Administrative Hearings (OAH) has invoked the emergency waiver found in 26 NCAC 01 .0105 for the purpose of waiving all time limitations contained in all Sections of 26 NCAC Chapter 03 – Hearings Division, except 26 NCAC 03 .0127. (The time limitation in 26 NCAC 03 .0127 applies only to administrative law judges).

This waiver applies to all contested cases now pending and hereafter filed at OAH until this waiver is revoked.

Please direct any questions regarding the notice to:

Bill Culpepper, General Counsel, (919) 431-3000, bill.culpepper@oah.nc.gov.

New Paid Sick Leave Act Affects Government Employers

Any administrative lawyer who represents a governmental entity of any size or who represents employees of governments will want to read this:

The new U.S. Families First Coronavirus Response Act affects all types of government employers, of all sizes. This blog post by the School of Government’s Diane Juffras indicates that the Act kicks in more or less immediately. The blog post is longer than usual because it offers examples of how the different new provisions of the complex new law interact with existing laws.

Fight Hunger, Help Others in the COVID-19 Pandemic – Participate in the Legal Feeding Frenzy and Support Your Local Food Bank!

Michele Livingstone

Will Quick

By Michele Livingstone and Will Quick

We are in unprecedented times with COVID-19 (Coronavirus).  It is now more important than ever that we help our neighbors and those who are not as fortunate. I am confident that each of you is doing your part.

Even in the best of times, however, over 1.5 Million North Carolinians struggle with hunger—of those, nearly half a million are children. With public schools and many religious and nonprofit organizations that traditionally serve the food insecure in our communities being closed for indefinite periods, and government leaders calling for social distancing to help limit the spread of Coronavirus, that need is never more pressing than now.

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Chief Administrative Law Judge Issues Response to COVID-19 emergency

Julian Mann, III, Director and Chief Administrative Law Judge of the NC Office of Administrative Hearings (OAH), has issued a response to the COVID-19 emergency. The responses addresses how OAH and all its constituent parts are responding to the COVID-19 emergency, as well as information for attorneys, litigants, agencies, boards and commissions.  The response includes: general information, the Hearings Division, the Rules Division, the Civil Rights Division, the Rules Review Commission, and the Human Relations Commission.

Recognition of Judge Fred Morrison’s Fifty Years of Service to North Carolina

By Nicholas “Nick” Dowgul 

The North Carolina Bar Association Administrative Law Division is proud to have had Judge Fred G. Morrison, Jr. as a member since 1966. Judge Morrison has been a stalwart of service to the state of North Carolina for fifty years. He has been recognized by Governor Roy Cooper and, most recently by Chief Justice Cheri Beasley for his five decades of civil service to our state. During that time, Judge Morrison has served our state as a board attorney with the City of Thomasville, legal counsel to the governor of North Carolina, and as an Administrative Law Judge, to name a few positions. He has been instrumental in not only helping to bring about positive change to prisons in North Carolina but also through his work with the Jaycees. Judge Morrison has had exceptional personal support from his wife, Carolyn, and is a proud Wake Forest School of Law Alumnus.

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Administrative Law Related Articles of Interest

Administrative Law Related Articles of Interest*

Members of the Administrative Law section found the following recent third party articles to be of potential interest to the section. Feel free to reach out to the section communications committee if you would like to submit either personally written pieces or other third party articles that would be of interest to the section’s members.

The Trooper and the Hat—A Fable for Our Time, Robert Edmunds, February 24, 2020.

This NC Appellate Practice blog article includes discussion of the societal ethical issues underlying the facts in the recent Court of Appeals decision in the Wetherington case.

Legislators plan to rein in local permitting for developments, Kirk Ross, March 3, 2020.

This Carolina Public Press article reports on the first meeting of a new House Select Committee on Residential Planning and Permitting that is looking at further reduction in local governments’ authority.

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Administrative Law Appellate Update

Mace v. NC Dep’t of Ins.

Court website description: prayer for judgment continued; conviction under N.C.G.S. 58-2-69; adjudication of guilt

NCDOI received an anonymous complaint that its licensee (plaintiff) had been convicted of assault. Plaintiff was found guilty of simple assault in a district court bench trial, followed by entry of a prayer for judgment continued upon payment of court costs. He did not make a mandatory report to DOI regarding the conviction. His attorney advised him that he need not report to DOI because “the district court had entered a PJC,” and “there had been no adjudication of guilt, plea of guilty, or plea of no contest.” A DOI hearing officer considered Petitioner’s reliance on advice of counsel. The hearing officer imposed a $100 civil rather than suspending or revoking Petitioner’s license.

On appeal by plaintiff, a Superior Court judge affirmed the hearing officer’s order. The Court of Appeals noted that the DOI statute specified that “conviction” “includes an adjudication of guilt, a plea of guilty, or a plea of nolo contendere.” The Court’s opinion cites to administrative law cases in its thorough discussion of “adjudication of guilt” in the context of whether a PJC with cost payment is an adjudication of guilt or entry of judgment. The Court affirms the trial court’s order.

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Administrative Law Pro Bono Opportunities

By Stephen J. White

The Section’s Council wants to ensure that administrative law practitioners are aware of pro bono opportunities available to them. The Section Council has worked with the Office of Administrative Hearings (OAH) over the years on pro bono opportunities. One goal of the Section’s pro bono committee this year is to compile a list of attorneys across the state who have an interest in handling OAH cases on a pro bono basis. An updated list will be an invaluable tool to help connect our Section’s great attorneys with persons in need of pro bono services before OAH. You can specify a particular type of case that you are willing to handle pro bono in OAH.

If you would like to be included on the pro bono list we are compiling, you can respond directly to me. I can be reached at Ott Cone & Redpath, P.A., 336-373-1300, sjw@ocrlaw.com.

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National Regulatory Board Seminar Covers Sanction Issues and NC Board Case

Nahale Kalfas and Johnny Loper recently attended and participated in the Federation of Associations of Regulatory Boards’ (FARB) annual regulatory law seminar in St. Louis, Missouri. Kalfas is NCBA Administrative Law Section Secretary, General Counsel for the NC Board of Examiners for Speech and Language Pathologists and Audiologists, and legal counsel to the Council of State Governments. Loper is a partner with Womble Bond Dickinson. FARB is a not-for-profit corporation formed in 1974 to promote public protection and provide a forum for information exchange for associations of regulatory boards and their affiliate stakeholders.

Kalfas and Loper, along with Arizona Assistant Attorney General Mona Baskin, participated in a panel presentation on “Probation: Sanction Options & Consequences.”

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Articles and Other Information of Potential Interest for Admin Law Practitioners

GSA Wants Public Feedback on its eRulemaking Modernization Effort.  Brandi Vincent, Nextgov.com. December 30, 2019.

GSA is seeking public comments on modernizing its eRulemaking and will hold public hearings on the topic on January 30 and March 25, 2020.  If you have ever commented on a federal rule or been frustrated by the eRulemaking process, this is your chance to make the system better.

Trump uses North Carolina’s Basnight Bridge to justify change in environmental rules

By Lynn Bonner. Durham Herald-Sun. January 09, 2020.

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