History: L. 1984, ch. 313, § 1; July 1, 1985.
(a) "State agency" means any officer, department, bureau, division, board, authority, agency, commission or institution of this state, except the judicial and legislative branches of state government and political subdivisions of the state, which is authorized by law to administer, enforce or interpret any law of this state.
(b) "Agency head" means an individual or body of individuals in whom the ultimate legal authority of the state agency is vested by any provision of law.
(c) "License" means a franchise, permit, certification, approval, registration, charter or similar form of authorization required by law for a person to engage in a profession or occupation.
(d) "Order" means a state agency action of particular applicability that determines the legal rights, duties, privileges, immunities or other legal interest of one or more specific persons.
(e) "Party to state agency proceedings," or "party" in context so indicating, means:
(1) A person to whom an order is specifically directed; or
(2) a person named as a party to a state agency proceeding or allowed to intervene as a party in the proceeding.
(f) "Person" means an individual, partnership, corporation, association, political subdivision or unit thereof or public or private organization or entity of any character, and includes another state agency.
(g) "Political subdivision" means political or taxing subdivisions of the state, including boards, commissions, authorities, councils, committees, subcommittees and other subordinate groups or administrative units thereof, receiving or expending and supported in whole or in part by public funds.
History: L. 1984, ch. 313, § 2; L. 1988, ch. 356, § 1; July 1, 1989.
(b) This act creates only procedural rights and imposes only procedural duties. They are in addition to those created and imposed by other statutes.
History: L. 1984, ch. 313, § 3; July 1, 1985.
History: L. 1984, ch. 313, § 4; July 1, 1985.
History: L. 1984, ch. 313, § 5; L. 2004, ch. 145, § 37; July 1, 2005.
(1) May convert the proceeding to another type of state agency proceeding if the conversion is appropriate, is in the public interest and does not substantially prejudice the rights of any party; and
(2) if required by any provision of law, shall convert the proceeding to another type of state agency proceeding.
(b) A conversion of a proceeding of one type to a proceeding of another type may be effected only upon notice to all parties to the original proceeding.
(c) If the presiding officer or other state agency official responsible for the original proceeding would not have authority over the new proceeding to which it is to be converted, that officer or official, in accordance with state agency procedure, shall secure the appointment of a successor to preside over or be responsible for the new proceeding.
(d) The record of the original state agency proceeding may be used in the new state agency proceeding.
(e) After a proceeding is converted from one type to another, the presiding officer or other state agency official responsible for the new proceeding shall:
(1) Give such additional notice to parties or other persons as is necessary to satisfy the requirements pertaining to those proceedings;
(2) dispose of the matters involved without further proceedings if sufficient proceedings have already been held to satisfy the requirements pertaining to the new proceedings; and
(3) conduct or cause to be conducted any additional proceedings necessary to satisfy the requirements pertaining to those proceedings.
History: L. 1984, ch. 313, § 6; L. 1988, ch. 356, § 2; July 1, 1989.
History: L. 1984, ch. 313, § 7; July 1, 1985.
History: L. 1988, ch. 356, § 360; July 1, 1989.
(a) To issue or not to issue a complaint, summons or similar accusation; or
(b) to initiate or not to initiate an investigation, prosecution or other proceeding before the state agency, another agency or a court.
History: L. 1984, ch. 313, § 8; L. 1988, ch. 356, § 3; L. 1989, ch. 283, § 1; July 1.
History: L. 1984, ch. 313, § 9; L. 1986, ch. 362, § 1; L. 1988, ch. 356, § 4; Repealed, L. 1989, ch. 283, § 26; July 1.
History: L. 1984, ch. 313, § 10; Repealed, L. 1989, ch. 283, § 26; July 1.
(1) Within 30 days after receipt of the application, the state agency shall acknowledge receipt thereof and inform the applicant of the name, official title, mailing address and telephone number of a state agency member or employee who may be contacted regarding the application. As soon as practicable, the state agency shall notify the applicant of any apparent errors or omissions. Failure to detect such errors or omissions does not preclude the state agency from raising them at a later stage of the proceeding.
(2) When practicable, within 90 days after receipt of a completed application, the state agency shall:
(A) Approve or deny the application, in whole or in part, on the basis of emergency or summary proceedings, if those proceedings are available under this act for disposition of the matter; or
(B) commence a formal hearing or a conference hearing in accordance with this act.
(b) Except to the extent that the time limits in this subsection are inconsistent with limits established by another statute, a state agency shall process a request for a hearing as follows:
(1) Within 30 days after receipt of the request, the state agency shall acknowledge receipt thereof and if the state agency has not previously done so, the state agency shall notify the applicant of the name, official title, mailing address and telephone number of a state agency member or employee who may be contacted regarding the request; and
(2) when practicable, within 90 days after receipt of the request the state agency shall commence a formal or conference hearing in accordance with this act unless a statute makes the granting of a hearing discretionary with the state agency and the state agency determines not to conduct a hearing.
(c) A hearing commences when the state agency or presiding officer notifies a party that a prehearing conference or other stage of the hearing will be conducted.
(d) If a timely and sufficient application has been made for renewal of a license with reference to any activity of a continuing nature, the existing license does not expire until the state agency has taken final action upon the application for renewal or, if the state agency's action is unfavorable, until the last day for seeking judicial review of the state agency's action or a later date fixed by the reviewing court.
History: L. 1984, ch. 313, § 11; L. 1986, ch. 362, § 2; L. 1988, ch. 356, § 5; L. 1989, ch. 283, § 2; July 1.
History: L. 1984, ch. 313, § 12; L. 1989, ch. 283, § 3; July 1.
(a) A statute other than this act; or
(b) K.S.A. 77-533 through 77-541, and amendments thereto
History: L. 1984, ch. 313, § 13; L. 1986, ch. 362, § 3; L. 1988, ch. 356, § 6; L. 1989, ch. 283, § 4; July 1.
(b) Any person serving or designated to serve alone or with others as presiding officer is subject to disqualification for administrative bias, prejudice or interest.
(c) Any party may petition for the disqualification of a person promptly after receipt of notice indicating that the person will preside or promptly upon discovering facts establishing grounds for disqualification, whichever is later.
(d) A person whose disqualification is requested shall determine whether to grant the petition, stating facts and reasons for the determination.
(e) If a substitute is required for a person who is disqualified or becomes unavailable for any other reason, any action taken by a duly appointed substitute for a disqualified or unavailable person is as effective as if taken by the latter.
(f) If the office of administrative hearings cannot provide a presiding officer, a state agency may enter into agreements with another state agency to provide presiding officers to conduct proceedings under this act.
(g) Notwithstanding any quorum requirements, if the agency head of a professional or occupational licensing agency is a body of individuals, the agency head, unless prohibited by law, may designate one or more members of the agency head to serve as presiding officer and to render a final order in the proceeding.
History: L. 1984, ch. 313, § 14; L. 1995, ch. 175, § 2; L. 1997, ch. 182, § 92; L. 2004, ch. 145, § 38; July 1, 2005.
(b) Whether or not participating in person, any party may be represented at the party's own expense by counsel or, if permitted by law, other representative.
(c) A state agency may require a corporation or other artificial person to participate by counsel.
History: L. 1984, ch. 313, § 15; L. 1986, ch. 362, § 4; July 1.
(a) The state agency may assign a presiding officer for the prehearing conference, exercising the same discretion as is provided by K.S.A. 77-514 and amendments thereto concerning the selection of a presiding officer for a hearing.
(b) The presiding officer for the prehearing conference shall set the time and place of the conference and give reasonable notice to all parties and to all persons who have filed written petitions to intervene in the matter.
(c) The notice shall include:
(1) The names and mailing addresses of all parties and other persons to whom notice is being given by the presiding officer;
(2) the name, official title, mailing address and telephone number of any counsel or employee who has been designated to appear for the state agency;
(3) the official file or other reference number, the name of the proceeding and a general description of the subject matter;
(4) a statement of the time, place and nature of the prehearing conference;
(5) a statement of the legal authority and jurisdiction under which the prehearing conference and the hearing are to be held;
(6) the name, official title, mailing address and telephone number of the presiding officer for the prehearing conference;
(7) a statement that at the prehearing conference the proceeding, without further notice, may be converted into a conference hearing or a summary proceeding for disposition of the matter as provided by this act; and
(8) a statement that a party who fails to attend or participate in a prehearing conference, hearing or other stage of an adjudicative proceeding may be held in default under this act.
(d) The notice may include any other matters that the presiding officer considers desirable to expedite the proceedings.
History: L. 1984, ch. 313, § 16; L. 1988 ch. 356, § 7; July 1, 1989.
(b) The presiding officer shall conduct the prehearing conference, as may be appropriate, to deal with such matters as conversion of the proceeding to another type, exploration of settlement possibilities, preparation of stipulations, clarification of issues, rulings on identity and limitation of the number of witnesses, objections to proffers of evidence, determination of the extent to which direct evidence, rebuttal evidence, or cross-examination will be presented in written form, and the extent to which telephone or other electronic means will be used as a substitute for proceedings in person, order of presentation of evidence and cross-examination, rulings regarding issuance of subpoenas, discovery orders and protective orders and such other matters as will promote the orderly and prompt conduct of the hearing. The presiding officer shall issue a prehearing order incorporating the matters determined at the prehearing conference.
(c) If a prehearing conference is not held, the presiding officer for the hearing may issue a prehearing order, based on the pleadings, to regulate the conduct of the proceedings.
History: L. 1984, ch. 313, § 17; July 1, 1985.
(b) The notice shall include a copy of any prehearing order rendered in the matter.
(c) To the extent not included in a prehearing order accompanying it, the notice shall include:
(1) The names and mailing addresses of all parties and other persons to whom notice is being given by the presiding officer;
(2) the name, official title, mailing address and telephone number of any counsel or employee who has been designated to appear for the state agency;
(3) the official file or other reference number, the name of the proceeding and a general description of the subject matter;
(4) a statement of the time, place and nature of the hearing;
(5) a statement of the legal authority and jurisdiction under which the hearing is to be held;
(6) the name, official title, mailing address and telephone number of the presiding officer;
(7) a statement of the issues involved and, to the extent known to the presiding officer, of the matters asserted by the parties; and
(8) a statement that a party who fails to attend or participate in a prehearing conference, hearing or other stage of an adjudicative proceeding may be held in default under this act.
(d) The notice may include any other matters the presiding officer considers desirable to expedite the proceedings.
(e) The state agency shall cause notice to be given to persons entitled to notice under any provision of law who have not been given notice under subsection (a) by the presiding officer. Notice under this subsection shall be given in the manner specified by such provision of law or, if no such manner is specified, in a manner to be determined by the agency. If a person other than the agency is directed to give notice under this subsection, the agency shall require that the person furnish proof that the notice has been given. Notice under this subsection may include all types of information provided in subsections (a) through (d) or may consist of a brief statement indicating the subject matter, parties, time, place and nature of the hearing, manner in which copies of the notice to the parties may be inspected and copied and name and telephone number of the presiding officer.
History: L. 1984, ch. 313, § 18; L. 1988, ch. 356, § 8; L. 1997, ch. 182, § 93; July 1, 1998.
(b) The presiding officer, at appropriate stages of the proceedings, may give all parties full opportunity to file briefs, proposed findings of fact and conclusions of law and proposed initial or final orders.
(c) A party shall serve copies of any filed item on all parties, by mail or any other means prescribed by state agency rule and regulation.
History: L. 1984, ch. 313, § 19; L. 1986, ch. 362, § 5; L. 1995, ch. 175, § 3; July 1.
(b) Within seven days after service of a proposed default order, the party against whom it was issued may file a written motion requesting that the proposed default order be vacated and stating the grounds relied upon. During the time within which a party may file a written motion under this subsection, the presiding officer may adjourn the proceedings or conduct them without the participation of the party against whom a proposed default order was issued, having due regard for the interests of justice and the orderly and prompt conduct of the proceedings.
(c) The proposed default order shall become effective after expiration of the time within which the party may file a written motion under subsection (b) unless a written motion to vacate the order is filed with the agency within such time. Upon receipt of a motion to vacate a proposed default order, the presiding officer shall either vacate the proposed order or issue the default order as proposed. If the presiding officer issues a default order as proposed, the order shall become effective upon service.
(d) After a default order becomes effective, the presiding officer shall conduct any further proceedings necessary to complete the adjudication without the participation of the party in default and shall determine all issues in the adjudication, including those affecting the defaulting party. The presiding officer in lieu of determining the issues affecting the defaulting party may, unless otherwise prohibited by law, dismiss such party's application for an adjudicative proceeding.
History: L. 1984, ch. 313, § 20; L. 1986, ch. 362, § 6; L. 1988, ch. 356, § 9; L. 1991, ch. 277, § 1; April 18.
(1) The petition is submitted in writing to the presiding officer, with copies mailed to all parties named in the presiding officer's notice of the hearing, at least three days before the hearing;
(2) the petition states facts demonstrating that the petitioner's legal rights, duties, privileges, immunities or other legal interests may be substantially affected by the proceeding or that the petitioner qualifies as an intervener under any provision of law; and
(3) the presiding officer determines that the interests of justice and the orderly and prompt conduct of the proceedings will not be impaired by allowing the intervention.
(b) The presiding officer may grant a petition for intervention at any time upon determining that the intervention sought is in the interests of justice and will not impair the orderly and prompt conduct of the proceedings.
(c) If a petitioner qualifies for intervention, the presiding officer may impose conditions upon the intervener's participation in the proceedings, either at the time that intervention is granted or at any subsequent time. Conditions may include:
(1) Limiting the intervener's participation to designated issues in which the intervener has a particular interest demonstrated by the petition;
(2) limiting the intervener's use of discovery, cross-examination and other procedures so as to promote the orderly and prompt conduct of the proceedings; and
(3) requiring two or more interveners to combine their presentations of evidence and argument, cross-examination, discovery and other participation in the proceedings.
(d) The presiding officer, at least 24 hours before the hearing, shall issue an order granting or denying each pending petition for intervention, specifying any conditions and briefly stating the reasons for the order. The presiding officer may modify the order at any time, stating the reasons for the modification. The presiding officer shall promptly give notice of an order granting, denying or modifying intervention to the petitioner for intervention and to all parties.
History: L. 1984, ch. 313, § 21; July 1, 1985.
(b) Subpoenas issued by the presiding officer may be served by a person designated by the presiding officer or any other person who is not a party and is not less than 18 years of age or may be served by certified mail, return receipt requested. Service shall be at the expense of the requesting party. Proof of service shall be shown by affidavit.
(c) Subpoenas and orders issued by the presiding officer may be enforced pursuant to the provisions of the act for judicial review and civil enforcement of agency actions.
History: L. 1984, ch. 313, § 22; L. 1988, ch. 356, § 10; L. 1989, ch. 283, § 5; L. 1995, ch. 175, § 4; July 1.
(a) The presiding officer shall regulate the course of the proceedings.
(b) To the extent necessary for full disclosure of all relevant facts and issues, the presiding officer shall afford to all parties the opportunity to respond, present evidence and argument, conduct cross-examination and submit rebuttal evidence, except as restricted by a limited grant of intervention or by the prehearing order.
(c) The presiding officer may, and when required by statute shall, give nonparties an opportunity to present oral or written statements. If the presiding officer proposes to consider a statement by a nonparty, the presiding officer shall give all parties an opportunity to challenge or rebut it and, on motion of any party, the presiding officer shall require the statement to be given under oath or affirmation.
(d) The presiding officer may conduct all or part of the hearing by telephone or other electronic means, if each participant in the hearing has an opportunity to participate in the entire proceeding while it is taking place.
(e) The presiding officer shall cause the hearing to be recorded at the state agency's expense. The state agency is not required, at its expense, to prepare a transcript, unless required to do so by a provision of law. Any party, at the party's expense and subject to such reasonable conditions as the state agency may establish, may cause a person other than the state agency to prepare a transcript from the state agency's record, or cause additional recordings to be made during the hearing.
(f) The hearing is open to public observation, except for the parts that the presiding officer states to be closed pursuant to a provision of law expressly authorizing closure.
History: L. 1984, ch. 313, § 23; L. 1988, ch. 356, § 11; July 1, 1989.
(b) All testimony of parties and witnesses shall be made under oath or affirmation and the presiding officer shall have the power to administer an oath or affirmation for that purpose.
(c) Statements presented by nonparties in accordance with paragraph (c) of K.S.A. 77-523 may be received as evidence.
(d) Any part of the evidence may be received in written form if doing so will expedite the hearing without substantial prejudice to the interests of any party.
(e) Documentary evidence may be received in the form of a copy or excerpt. Upon request, parties shall be given an opportunity to compare the copy with the original if available.
(f) Official notice may be taken of (1) any matter that could be judicially noticed in the courts of this state, (2) the record of other proceedings before the state agency, (3) technical or scientific matters within the state agency's specialized knowledge, and (4) codes of standards that have been adopted by an agency of the United States, of this state or of another state or by a nationally recognized organization or association. Parties shall be notified before or during the hearing, or before the issuance of any initial or final order that is based in whole or in part on matters or material noticed, of the specific matters or material noticed and the source thereof, including any staff memoranda and data, and be afforded an opportunity to contest and rebut the matters or material so noticed.
History: L. 1984, ch. 313, § 24; July 1, 1985.
(b) A member of a multimember panel of presiding officers may communicate with other members of the panel regarding a matter pending before the panel, and any presiding officer may receive aid from staff assistants if the assistants do not:
(1) Receive ex parte communications of a type that the presiding officer would be prohibited from receiving; or
(2) furnish, augment, diminish or modify the evidence in the record.
(c) Unless required for the disposition of ex parte matters specifically authorized by statute, no party to an adjudicative proceeding, and no person who has a direct or indirect interest in the outcome of the proceeding or who presided at a previous stage of the proceeding, may directly or indirectly communicate in connection with any issue in that proceeding, while the proceeding is pending, with any person serving as presiding officer unless notice and an opportunity are given all parties to participate in the communication.
(d) If, before serving as presiding officer in an adjudicative proceeding, a person receives an ex parte communication of a type that could not properly be received while serving, the person, promptly after starting to serve, shall disclose the communication in the manner prescribed in subsection (e).
(e) A presiding officer who receives an ex parte communication in violation of this section shall place on the record of the pending matter all written communications received, all written responses to the communications and a memorandum stating the substance of all oral communications received, all responses made and the identity of each person from whom the presiding officer received an ex parte communication and shall advise all parties that these matters have been placed on the record. Any party desiring to rebut the ex parte communication must be allowed to do so, upon requesting the opportunity for rebuttal within 10 days after notice of the communication.
(f) If necessary to eliminate the effect of an ex parte communication received in violation of this section, a presiding officer who receives the communication may be disqualified and the portions of the record pertaining to the communication may be sealed by protective order.
(g) The state agency shall, and any party may, report any willful violation of this section to appropriate authorities for any disciplinary proceedings provided by law. In addition, each state agency, by rule and regulation, may provide for appropriate sanctions, including default, for any violations of this section.
(h) This section shall not apply to adjudicative proceedings before:
(1) The state corporation commission. Such proceedings shall be subject to the provisions of K.S.A. 77-545;
(2) the commissioner of insurance concerning any rate, or any rule, regulation or practice pertaining to the rates over which the commissioner has jurisdiction or adjudicative proceedings held pursuant to the Kansas insurance holding companies act. Such proceedings shall be subject to the provisions of K.S.A. 77-546; and
(3) the director of taxation. Such proceedings shall be subject to the provisions of K.S.A. 77-548.
History: L. 1984, ch. 313, § 25; L. 1986, ch. 362, § 7; L. 1988, ch. 356, § 12; July 1, 1989.
(b) If the presiding officer is neither the agency head nor designated in accordance with subsection (g) of K.S.A. 77-514, and amendments thereto, the presiding officer shall render an initial order, which becomes a final order unless reviewed in accordance with K.S.A. 77-527 and amendments thereto.
(c) A final order or initial order shall include, separately stated, findings of fact, conclusions of law and policy reasons for the decision if it is an exercise of the state agency's discretion, for all aspects of the order, including the remedy prescribed and, if applicable, the action taken on a petition for stay of effectiveness. Findings of fact, if set forth in language that is no more than mere repetition or paraphrase of the relevant provision of law, shall be accompanied by a concise and explicit statement of the underlying facts of record to support the findings. The order shall also include a statement of the available procedures and time limits for seeking reconsideration, administrative review or other administrative relief. An initial order shall include a statement of any circumstances under which the initial order, without further notice, may become a final order. If the presiding officer has been designated in accordance with subsection (g) of K.S.A. 77-514, and amendments thereto, the final order shall so state. Any final order, for which a petition for reconsideration is not a prerequisite for seeking judicial review, and any initial order, for which further administrative review is not available, shall state the agency officer to receive service of a petition for judicial review on behalf of the agency.
(d) Findings of fact shall be based exclusively upon the evidence of record in the adjudicative proceeding and on matters officially noticed in that proceeding.
(e) If a substitute presiding officer is appointed pursuant to K.S.A. 77-514 and amendments thereto, the substitute presiding officer shall use any existing record and may conduct any further proceedings appropriate in the interests of justice.
(f) The presiding officer may allow the parties a designated amount of time after conclusion of the hearing for the submission of proposed findings.
(g) A final order or initial order pursuant to this section shall be rendered in writing and served within 30 days after conclusion of the hearing or after submission of proposed findings in accordance with subsection (f) unless this period is waived or extended with the written consent of all parties or for good cause shown. If extended for good cause, such good cause shall be set forth in writing on or before expiration of the 30 days.
(h) The presiding officer shall cause copies of the order to be served on each party and, if the order is an initial order, on the agency head in the manner prescribed by K.S.A. 77-531 and amendments thereto.
(i) Notwithstanding the other provisions of this section, if the presiding officer in a hearing before the state corporation commission is not the agency head, the presiding officer shall not render an initial order but shall make written findings and recommendations to the commission. The commission shall render and serve a final order within 60 days after conclusion of the hearing or after submission of proposed findings in accordance with subsection (f) unless this period is waived or extended with the written consent of all parties or for good cause shown. If extended for good cause, such good cause shall be set forth in writing on or before expiration of the 60 days.
History: L. 1984, ch. 313, § 26; L. 1988, ch. 356, § 13; L. 1995, ch. 175, § 5; July 1.
(1) A provision of law precludes or limits state agency review of the initial order; or
(2) the agency head (A) determines to review some but not all issues, or not to exercise any review, (B) delegates its authority to review the initial order to one or more persons, unless such delegation is expressly prohibited by law, or (C) authorizes one or more persons to review the initial order, subject to further review by the agency head.
(b) A petition for review of an initial order must be filed with the agency head, or with any person designated for this purpose by rule and regulation of the state agency, within 15 days after service of the initial order. If the agency head on its own motion decides to review an initial order, the agency head shall give written notice of its intention to review the initial order within 15 days after its service. If the agency head determines not to review an initial order in response to a petition for review, the agency head shall, within 20 days after filing of the petition for review, serve on each party an order stating that review will not be exercised.
(c) The petition for review shall state its basis. If the agency head on its own motion gives notice of its intent to review an initial order, the agency head shall identify the issues that it intends to review.
(d) In reviewing an initial order, the agency head or designee shall exercise all the decision-making power that the agency head or designee would have had to render a final order had the agency head or designee presided over the hearing, except to the extent that the issues subject to review are limited by a provision of law or by the agency head or designee upon notice to all parties.
(e) The agency head or designee shall afford each party an opportunity to present briefs and may afford each party an opportunity to present oral argument.
(f) The agency head or designee shall render a final order disposing of the proceeding or remand the matter for further proceedings with instructions to the person who rendered the initial order. Upon remanding a matter, the agency head or designee may order such temporary relief as is authorized and appropriate.
(g) A final order or an order remanding the matter for further proceedings shall be rendered in writing and served within 30 days after receipt of briefs and oral argument unless that period is waived or extended with the written consent of all parties or for good cause shown.
(h) A final order or an order remanding the matter for further proceedings under this section shall identify any difference between this order and the initial order and shall state the facts of record which support any difference in findings of fact, state the source of law which supports any difference in legal conclusions, and state the policy reasons which support any difference in the exercise of discretion. A final order under this section shall include, or incorporate by express reference to the initial order, all the matters required by subsection (c) of K.S.A. 77-526, and amendments thereto.
(i) The agency head shall cause copies of the final order or order remanding the matter for further proceedings to be served on each party in the manner prescribed by K.S.A. 77-531, and amendments thereto.
(j) Unless a petition for reconsideration is a prerequisite for seeking judicial review, a final order under this section shall state the agency officer to receive service of a petition for judicial review on behalf of the agency.
History: L. 1984, ch. 313, § 27; L. 1988, ch. 356, § 14; L. 1995, ch. 175, § 6; L. 1997, ch. 182, § 94; July 1, 1998.
History: L. 1984, ch. 313, § 28; July 1, 1985.
(2) Any party applying for an exemption under: (A) Section 13, of article 11 of the Kansas Constitution, or (B) K.S.A. 79-201a Second, and amendments thereto, for property constructed or purchased, in whole or in part, with the proceeds of revenue bonds under the authority of K.S.A. 12-1740 to 12-1749, inclusive, and amendments thereto, may file a petition for reconsideration with the state board of tax appeals within 30 days after service of a final order.
(b) Within 20 days after the filing of the petition, the agency head shall render a written order denying the petition, granting the petition and dissolving or modifying the final order, or granting the petition and setting the matter for further proceedings. The petition may be granted, in whole or in part, only if the agency head states, in the written order, findings of fact, conclusions of law and policy reasons for the decision if it is an exercise of the state agency's discretion, to justify the order. In proceedings before the Kansas corporation commission, the petition is deemed to have been denied if the agency head does not dispose of it within 30 days after the filing of the petition.
An order under this section shall be served on the parties in the manner prescribed by K.S.A. 77-531 and amendments thereto.
(c) Any order rendered upon reconsideration or any order denying a petition for reconsideration shall state the agency officer to receive service of a petition for judicial review on behalf of the agency.
(d) For the purposes of this section, "agency head" shall include a presiding officer designated in accordance with subsection (g) of K.S.A. 77-514, and amendments thereto.
History: L. 1984, ch. 313, § 29; L. 1988, ch. 356, § 15; L. 1991, ch. 148, § 11; L. 1995, ch. 175, § 7; L. 1997, ch. 132, § 4; L. 1998, ch. 146, § 4; July 1.
(b) Unless a later date is stated in an initial order or a stay is granted, an initial order shall become effective and shall become the final order: (1) When the initial order is served, if administrative review is unavailable; (2) when the agency head serves an order stating, after a petition for review has been filed, that review will not be exercised; or (3) 30 days after service if no party has filed a petition for review by the agency head, the agency head has not given written notice of its intention to exercise review and review by the agency head is not otherwise required by law.
(c) This section does not preclude a state agency from taking immediate action to protect the public interest in accordance with K.S.A. 77-536 and amendments thereto.
History: L. 1984, ch. 313, § 30; L. 1988, ch. 356, § 16; July 1, 1989.
History: L. 1984, ch. 313, § 31; July 1, 1985.
(b) The state agency record consists only of:
(1) Notices of all proceedings;
(2) any prehearing order;
(3) any motions, pleadings, briefs, petitions, requests, and intermediate rulings;
(4) evidence received or considered;
(5) a statement of matters officially noticed;
(6) proffers of proof and objections and rulings thereon;
(7) proposed findings, requested orders and exceptions;
(8) the record prepared for the presiding officer at the hearing, together with any transcript of all or part of the hearing considered before final disposition of the proceeding;
(9) any final order, initial order, or order on reconsideration; and
(10) staff memoranda or data submitted to the presiding officer.
(c) Except to the extent that this act or another statute provides otherwise, the state agency record, excluding matters under paragraph (10) of subsection (b), constitutes the exclusive basis for state agency action in formal hearings and for judicial review thereof.
History: L. 1984, ch. 313, § 32; L. 1988, ch. 356, § 17; July 1, 1989.
(a) A matter in which there is no disputed issue of material fact; or
(b) a matter in which there is a disputed issue of material fact and the parties agree to a conference hearing.
History: L. 1984, ch. 313, § 33; L. 1988, ch. 356, § 18; July 1, 1989.
(a) If a matter is initiated as a conference hearing, no prehearing conference may be held.
(b) The provisions of K.S.A. 77-522 and amendments thereto do not apply to conference hearings insofar as those provisions authorize the issuance and enforcement of subpoenas and discovery orders, but do apply to conference hearings insofar as those provisions authorize the presiding officer to issue protective orders at the request of any party or upon the presiding officer's motion.
(c) Paragraphs (a), (b) and (c) of K.S.A. 77-523 and amendments thereto do not apply; but (1) the presiding officer shall regulate the course of the proceedings; (2) only the parties may testify and present written exhibits; and (3) the parties may offer comments on the issues.
History: L. 1984, ch. 313, § 34; L. 1988, ch. 356, § 19; July 1, 1989.
(b) If during a conference hearing a party has reason to believe that essential facts must be obtained in order to permit an adequate presentation of the case, the party may inform the presiding officer regarding the general nature of the facts and the sources from whom the party would propose to obtain those facts if the proceeding were converted to a formal hearing.
History: L. 1984, ch. 313, § 35; L. 1988, ch. 356, § 20; July 1, 1989.
(b) The state agency may take only such action as is necessary: (1) To prevent or avoid the immediate danger to the public health, safety or welfare that justifies use of emergency adjudication or (2) to remedy a situation for which use of emergency adjudication is otherwise provided by law.
(c) The state agency shall render an order, including a brief statement of findings of fact, conclusions of law and policy reasons for the decision if it is an exercise of the state agency's discretion, to justify the state agency's decision to take the specific action and the determination of: (1) An immediate danger or (2) the existence of a situation for which use of emergency adjudication is otherwise provided by law.
(d) The state agency shall give such notice as is practicable to persons who are required to comply with the order. The order is effective when rendered. Notice under this subsection shall constitute service for the purposes of the act for judicial review and civil enforcement of agency actions.
(e) After issuing an order pursuant to this section, the state agency shall proceed as quickly as feasible to complete any proceedings that would be required if the matter did not justify the use of emergency proceedings under subsection (a).
(f) The state agency record consists of any documents regarding the matter that were considered or prepared by the state agency. The state agency shall maintain these documents as its official record.
(g) Unless otherwise required by a provision of law, the state agency record need not constitute the exclusive basis for state agency action in emergency proceedings or for judicial review thereof.
History: L. 1984, ch. 313, § 36; L. 1988, ch. 356, § 21; July 1, 1989.
(1) The use of those proceedings in the circumstances does not violate any provision of law; and
(2) the protection of the public interest does not require the state agency to give notice and an opportunity to participate to persons other than the parties.
(b) The state agency shall serve each party with a copy of the order in a summary proceeding in the manner prescribed by K.S.A. 77-531, and amendments thereto. The order shall include at least:
(1) A statement of the state agency's action and, if unfavorable action is taken, a brief statement of the reasons for the action;
(2) notice of the time and manner for requesting a hearing on the order, as provided in K.S.A. 77-542; and
(3) notice that, if a hearing is not requested, the order shall become effective upon the expiration of the time for requesting a hearing.
History: L. 1984, ch. 313, § 37; L. 1988, ch. 356, § 22; L. 1989, ch. 283, § 6; L. 1990, ch. 340, § 1; July 1.
History: L. 1984, ch. 313, §§ 38 to 40; L. 1988, ch. 356, §§ 23 to 25; Repealed, L. 1989, ch. 283, § 26; July 1.
(b) Unless otherwise required by a provision of law, the agency record need not constitute the exclusive basis for agency action in summary proceedings or for judicial review thereof.
History: L. 1984, ch. 313, § 41; L. 1988, ch. 356, § 26; L. 1989, ch. 283, § 7; July 1.
(b) The time limit for requesting a hearing established by subsection (a) may be lengthened or shortened as otherwise provided by state or federal law.
History: L. 1990, ch. 340, § 2; July 1.
(b) (1) After the commission has determined and announced that a hearing should be held, and prior to the issuance of a final order, no parties to the proceeding, or their counsel, shall discuss the merits of the matter or proceeding with the presiding officer unless reasonable notice is given to all parties who have appeared to enable the parties to be present at the conference.
(2) After the commission has determined and announced that a hearing should be held, prior to the issuance of a final order, copies of any written communications from any party regarding the proceeding that are directed to the presiding officer shall be mailed to all parties of record and proof of service shall be furnished to the commission. Communications requested by members of the commission staff from any party and any written communications received by members of the commission staff from any party shall be made a part of the file and the docket and shall be made available to all persons who desire to use them, provided that all commission requests for information from a party shall be mailed to all parties of record.
(3) The person or persons to whom any ex parte communication has been made shall promptly and fully inform the full commission of the substance of the communication, and the circumstances thereof, to enable the commission to take appropriate action.
(c) For purposes of this section, no member of the technical staff shall be considered a party to any proceeding before the commission, regardless of participation in staff investigations with respect to the proceeding or of participation in the proceeding as a witness. Since the purpose of the staff is to aid the commission in the proper discharge of commission duties, the presiding officers shall be free at all times to confer with any staff member with respect to any proceeding. However, no facts that are outside the record, and that reasonably could be expected to influence the decision in any matter pending before the commission, shall be furnished to any presiding officer unless all parties to the proceeding are likewise informed and afforded a reasonable opportunity to respond. Subsection (b) shall apply to staff counsel in regard to any adjudicatory proceeding before the commission.
(d) All letters and written communications that are received by the presiding officer from members of the general public, and that are in the nature of ex parte communications, shall be made a part of the file in the docket and shall be made available to all persons who desire to see them. The deposit of such written communications and letters in the file shall not make them a part of the official record of the case.
History: L. 1988, ch. 356, § 355; July 1, 1989.
(b) (1) After the commissioner has determined and announced that a hearing should be held, and prior to the issuance of a final order, no parties to the proceeding, or their counsel, shall discuss the merits of the matter or proceeding with the presiding officer unless reasonable notice is given to all parties who have appeared to enable the parties to be present at the conference.
(2) After the commissioner has determined and announced that a hearing should be held, prior to the issuance of a final order, copies of any written communications from any party regarding the proceeding that are directed to the presiding officer shall be mailed to all parties of record and proof of service shall be furnished to the commissioner. Communications requested by the commissioner's staff from any party and any written communication received by the commissioner's staff from any party shall be made a part of the file and the docket and shall be made available to all persons who desire to use them, provided that the commissioner's requests for information from a party shall be mailed to all parties of record.
(3) The person or persons to whom any ex parte communication has been made shall promptly and fully inform the commissioner of the substance of the communication, and the circumstances thereof, to enable the commissioner to take appropriate action.
(c) For purposes of this section, no member of the commissioner's technical staff shall be considered a party to any proceeding before the commissioner, regardless of participation in staff investigations with respect to the proceeding or of participation in the proceeding as a witness. Since the purpose of the staff is to aid the commissioner in the proper discharge of the commissioner's duties, the presiding officer shall be free at all times to confer with any staff member with respect to any proceeding. However, no facts that are outside the record, and that reasonably could be expected to influence the decision in any matter pending before the commissioner, shall be furnished to any presiding officer unless all parties to the proceeding are likewise informed and afforded a reasonable opportunity to respond. Subsection (b) shall apply to staff counsel who have participated in the proceeding in regard to any adjudicatory proceeding before the commissioner.
(d) All letters and written communications that are received by the presiding officer from members of the general public, and that are in the nature of ex parte communications, shall be made a part of the file in the docket and shall be made available to all persons who desire to see them. The deposit of such written communications and letters in the file shall not make them a part of the official record of the case.
History: L. 1988, ch. 356, § 356; July 1, 1989.
History: L. 1988, ch. 356, § 358; July 1, 1989.
(b) (1) After the director has determined and announced that a hearing should be held, and prior to the issuance of a final order, no parties to the proceeding, or their counsel, shall discuss the merits of the matter or proceeding with the presiding officer unless reasonable notice is given to all parties who have appeared to enable the parties to be present at the conference.
(2) After the director has determined and announced that a hearing should be held, prior to the issuance of a final order, copies of any written communications from any party regarding the proceeding that are directed to the presiding officer shall be mailed to all parties of record and proof of service shall be furnished to the director. Communications requested by the director's staff from any party and any written communication received by the director's staff from any party shall be made a part of the file and the docket and shall be made available to all persons who desire to use them, provided that the director's requests for information from a party shall be mailed to all parties of record.
(3) The person or persons to whom any ex parte communication has been made shall promptly and fully inform the director of the substance of the communication, and the circumstances thereof, to enable the director of any division within the department to take appropriate action.
(c) For purposes of this section, no member of the director's technical staff shall be considered a party to any proceeding before the director, regardless of participation in staff investigations with respect to the proceeding or of participation in the proceeding as a witness. Since the purpose of the staff is to aid the director in the proper discharge of the director's duties, the presiding officer shall be free at all times to confer with any staff member with respect to any proceeding. However, no facts that are outside the record, and that reasonably could be expected to influence the decision in any matter pending before the director, shall be furnished to any presiding officer unless all parties to the proceeding are likewise informed and afforded a reasonable opportunity to respond. Subsection (b) shall apply to staff counsel who have participated in the proceeding in regard to any adjudicatory proceeding before the director.
(d) All letters and written communications that are received by the presiding officer from members of the general public, and that are in the nature of ex parte communications, shall be made a part of the file in the docket and shall be made available to all persons who desire to see them. The deposit of such written communications and letters in the file shall not make them a part of the official record of the case.
History: L. 1988, ch. 356, § 357; L. 1997, ch. 126, § 6; July 1.
(b) A determination by the division of taxation or the audit services bureau of the department of revenue concerning tax liability under article 15, 32, 33, 34, 36, 37, 41, 42 or 47 of chapter 79 of the Kansas Statutes Annotated, and amendments thereto, which is made prior to the opportunity for a hearing or prior to the opportunity for an informal conference before the secretary or the secretary's designee on such tax liability, shall not require an adjudicative proceeding under the Kansas administrative procedure act.
(c) For purposes of the Kansas administrative procedure act, the secretary of revenue may designate the director of the division of taxation or other designee as agency head.
(d) Final orders of the director of taxation pursuant to K.S.A. 77-526, and amendments thereto, shall be rendered in writing and served within 120 days after conclusion of the hearing or after submission of proposed findings in accordance with subsection (f) of K.S.A. 77-526, and amendments thereto, unless this period is waived or extended with the written consent of all parties or for good cause shown. If extended for good cause, such good cause shall be set forth in writing on or before the expiration of the 120 days.
History: L. 1988, ch. 356, § 359; L. 1995, ch. 175, § 8; L. 1997, ch. 126, § 7; July 1.
History: L. 1994, ch. 139, § 1; L. 1997, ch. 126, § 8; July 1.
(b) The provisions of this section shall not apply to the employment security law, pursuant to K.S.A. 44-701 et seq., and amendments thereto or article 5 of chapter 44 and amendments thereto, except K.S.A. 44-532 and 44-5,120 and amendments thereto, concerning the workers compensation act.
(c) Notwithstanding subsection (a) the agency head or one or more members of the agency who will serve as a presiding officer may designate any other person to serve as a presiding officer to determine procedural matters that may arise prior to the hearing on the merits, including but not limited to conducting prehearing conferences pursuant to K.S.A. 77-516 and 77-517 and amendments thereto.
(d) This section shall be part of and supplemental to the Kansas administrative procedure act.
History: L. 1997, ch. 182, § 90; L. 2004, ch. 145, § 42; July 1, 2005.
History: L. 2004, ch. 145, § 1; July 1.
(b) Except as otherwise provided by this act, the office of administrative hearings and the director established by this act shall be the successor in every way to the powers, duties and functions of the office of administrative hearings within the department of administration and the secretary of administration concerning adjudicative proceedings of the Kansas administrative procedure act in which the same were vested prior to the effective date of this section. Every act performed in the exercise of such powers, duties and functions by or under the authority of the office of administrative hearings and the director concerning adjudicative proceedings of the Kansas administrative procedure act established by this act shall be deemed to have the same force and effect as if performed by the office of administrative hearings within the department of administration and the secretary of administration, respectively, in which such powers, duties and functions were vested prior to the effective date of this section.
(c) Except as otherwise provided by this act, whenever the office of administrative hearings within the department of administration and the secretary of administration, or words of like effect concerning adjudicative proceedings of the Kansas administrative procedure act, is referred to or designated by a statute, contract or other document, such reference or designation shall be deemed to apply to the office of administrative hearings established by this act.
(d) Except as otherwise provided by this act, whenever the secretary of administration, or words of like effect concerning adjudicative proceedings of the Kansas administrative procedure act, is referred to or designated by a statute, contract or other document, such reference or designation shall be deemed to apply to the director established by this act.
(e) All rules and regulations of the office of administrative hearings within the department of administration and the secretary of administration concerning adjudicative proceedings of the Kansas administrative procedure act in existence on the effective date of this section shall continue to be effective and shall be deemed to be duly adopted rules and regulations of the director of the office of administrative hearings established by this act until revised, amended, revoked or nullified pursuant to law.
(f) All orders and directives of the office of administrative hearings within the department of administration and the secretary of administration concerning adjudicative proceedings of the Kansas administrative procedure act in existence on the effective date of this section shall continue to be effective and shall be deemed to be orders and directives of the director of the office of administrative hearings established by this act until revised, amended or nullified pursuant to law.
(g) On the effective date of this section, the director of the office of administrative hearings established by this act shall succeed to whatever right, title or interest the department of administration has acquired in any real property in this state concerning adjudicative proceedings of the Kansas administrative procedure act, and the director of the office of administrative hearings shall hold the same for and in the name of the state of Kansas. On and after the effective date of this section, whenever any statute, contract, deed or other document concerns the power or authority of the office of administrative hearings within the department of administration and the secretary of administration concerning adjudicative proceedings of the Kansas administrative procedure act to acquire, hold or dispose of real property or any interest therein, the office of administrative hearings and the director as established by this act shall succeed to such power or authority.
(h) The office of administrative hearings and the director established by this act shall be continuations of the office of administrative hearings within the department of administration and the secretary of administration concerning adjudicative proceedings of the Kansas administrative procedure act.
History: L. 2004, ch. 145, § 2; July 1.
History: L. 2004, ch. 145, § 3; July 1.
(a) When any conflict arises as to the disposition of any power, function or duty or the unexpended balance of any appropriation as a result of any abolition, transfer, attachment or change made by or under authority of this act, such conflict shall be resolved by the governor, whose decision shall be final.
(b) The office of administrative hearings shall succeed to all property and records which were used for or pertain to the performance of the powers, duties and functions transferred to the office of administrative hearings. Any conflict as to the proper disposition of property or records arising under this section, and resulting from the transfer or attachment of any state agency, or all or part of the powers, duties and functions thereof, shall be determined by the governor, whose decision shall be final.
History: L. 2004, ch. 145, § 4; July 1.
(a) The office of administrative hearings shall have the legal custody of all records, memoranda, writings, entries, prints, representations or combinations thereof of any act, transaction, occurrence or event of the office of administrative hearings within the department of administration concerning adjudicative proceedings of the Kansas administrative procedure act and any agency or office transferred thereto under this act.
(b) No suit, action or other proceeding, judicial or administrative, lawfully commenced, or which could have been commenced, by or against any state agency mentioned in this act, or by or against any officer of the state in such officer's official capacity or in relation to the discharge of such officer's official duties, shall abate by reason of the governmental reorganization effected under the provisions of this act. The court may allow any such suit, action or other proceeding to be maintained by or against the successor of any such state agency or any officer affected.
(c) No criminal action commenced or which could have been commenced by the state shall abate by the taking effect of this act.
History: L. 2004, ch. 145, § 5; July 1.
(b) On and after July 1, 2009, the liability for all accrued compensation or salaries of officers and employees who, immediately prior to such date, were engaged in the performance of powers, duties or functions of the office of administrative hearings within the department of administration concerning adjudicative proceedings of the Kansas administrative procedure act, or who become a part of the office of administrative hearings established by this act, or the powers, duties and functions of which are transferred to the office of administrative hearings provided for by this act, shall be assumed and paid by the office of administrative hearings established by this act.
History: L. 2004, ch. 145, § 6; July 1.