NJ Senate Considering Whether to Limit Power of DEP, DCA Commissioners

On February 17, 2011, the Assembly unanimously adopted bill A 2722. The bill, which is intended to implement some of the findings of the Red Tape Review Group, would amend the Administrative Procedures Act and provide administrative law judges (“ALJs”) with more tools to streamline contested administrative law cases. Interestingly, however, the bill would also strip the Commissioners of the New Jersey Department of Environmental Protection (“DEP”) and Department of Community Affairs (“DCA”), as well as some others, of their power to review, modify, or reject ALJs’ decisions in contested cases.

Currently, once a contested case is forwarded by the department to the Office of Administrative Law, the case is assigned to an ALJ, and a trial-like hearing is held. Upon completion of the hearing, the ALJ issues a report and decision with recommended findings of fact and conclusions of law. The department head (i.e. Commissioner of the DEP) then has 45 days to adopt, reject, or modify the recommended report and decision before the decision becomes final.

If the Senate adopts an identical version of A 2722 (S 2666) and the Governor signs it into law, the report and recommendation of the ALJ would be final, without further review by the department head, in any contested case from:

  1. the Department of Community Affairs;
  2. the Department of Education;
  3. the Department of Environmental Protection;
  4. the Department of Children and Families involving placement on a child abuse registry;
  5. the Department of Health and Senior Services involving placement on the nurse aid registry, and penalty matters;
  6. the Division of Family Development in the Department of Human Services;
  7. the Division of Civil Rights in the Department of Law and Public Safety;
  8. the New Jersey Motor Vehicle Commission;
  9. the Civil Service Commission; and
  10. the Department of Law and Public Safety under P.L.1988, c.123 (C.56:12-29 et seq.).

Notably, the Division of Alcoholic Beverage Control and the Department of Transportation are not on the targeted list. Therefore, the Director of the Division of Alcoholic Beverage Control and the Commissioner of the DOT will continue to have the final say in contested cases with their departments. In addition, the bill does not impact a party’s right to appeal the ALJ’s decision to the Appellate Division.

Although the bill is intended to cut red tape and lessen the time between the ALJ’s decision and when the final order becomes appealable, it also eliminates a check on the OAL by the head of the department, who presumably is an expert in the field.

The bill was received in the Senate (S 2666) and referred to the Senate State Government, Wagering, Tourism & Historic Preservation Committee. A vote on the bill has not yet been scheduled.

Jennifer P. Smith is an Associate in the Gibbons Real Property & Environmental Department.

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