Administrative Procedure Act Archives • WSHRC Digest

WSHRC: Definition of Administrative Procedure Act

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, what is the definition of the term “Administrative Procedure Act”? Here’s my point of view. (NOTE: please read our DISCLAIMER before proceeding).

DEFINITION

WAC 162-04-010 is the relevant regulation, and it defines the term as follows:

“Administrative Procedure Act” means chapter 34.05 RCW.

WAC 162-04-010 (emphasis and hyperlinks added). The term is used with the meaning given, unless the context clearly indicates another meaning. Id.

LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with Law Office of Gregory A. Williams, P.S., Inc.; Williams Law Group, PS; or the author of this article. Please see our DISCLAIMER.

–gw

Discovery–Administrative Hearing

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning Discovery–Administrative Hearing? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt rules concerning Discovery–Administrative Hearing. See WAC 162-08-263, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

DISCOVERY–ADMINISTRATIVE HEARING

WAC 162-08-263 is the relevant regulation, and it addresses Discovery–Administrative Hearing as follows:

The commission has determined that discovery will be available in adjudicative proceedings in accordance with RCW 34.05.446(2).

(1) Methods. Upon certification of the file pursuant to WAC 162-08-190, and request for the appointment of an administrative law judge pursuant to WAC 162-08-211, any party may obtain discovery by the methods provided in CR 26(a). The procedures regarding these methods of discovery are found at CR 28 through 37 as now or hereafter amended and are hereby incorporated in this section.

(2) Scope of discovery. Any party may obtain discovery regarding any matter not privileged which is relevant to the amended complaint prepared by counsel for the commission or the additional charges filed by the complainant pursuant to WAC 162-08-261.

(3) Protective order. Rulings on motions for protective orders regarding discovery brought under this section shall be made by the administrative law judge pursuant to the provisions of WAC 162-08-271.

(4) Order compelling discovery. The administrative law judge is authorized to make any order that a court could make under CR 37(a), including an order awarding expenses of the motion to compel discovery. Motions for an order compelling discovery and the procedure for its disposition are governed by WAC 162-08-271.

WAC 162-08-263 (emphasis added) (hyperlinks added).

LEARN MORE

–gw

Record, Pleadings

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning record and pleadings? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt rules concerning record and pleadings. See WAC 162-08-231, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

RECORD, PLEADINGS

WAC 162-08-231 is the relevant regulation, and it addresses record and pleadings as follows:

(1) Record. The record of an administrative hearing shall include the items specified in RCW 34.05.437, including, but not limited to:

(a) All pleadings, motions, briefs, proposed findings of fact and conclusions of law and initial or final orders, objections, but not offers of settlement (RCW 49.60.250(2));
(b) Evidence received or considered;
(c) A statement of matters officially noticed;
(d) Any decision, opinion, or report by the officer presiding at the hearing.

(2) Pleadings. Pleadings for an administrative hearing shall include the notice of hearing with amended complaint attached and any amended complaints subsequently filed, plus any answers or replies filed under WAC 162-08-251, and the original complaint if, but only if, the complainant elects to proceed under it as provided in WAC 162-08-261.

(3) Proceedings before notice of hearing not part of record. No findings or other parts of the commission‘s record of action on the complaint prior to notice of hearing shall be included in the record of the administrative hearing unless the particular document is offered and admitted into evidence.

(4) Custody. The clerk shall keep custody of the official record of the administrative hearing as provided in WAC 162-04-026(3)(h) and shall keep the administrative law judge file separate from the file of the original complaint, investigation, and conciliation, of which the clerk has custody under WAC 162-04-026(3)(d) and 162-08-190.

(5) Record for appeal. The record certified to the court for the purpose of judicial review under RCW 34.05.510 et seq. shall comply with RCW 34.05.566.

(6) Record for enforcement. The record to be filed in an enforcement proceeding shall include the final order of the administrative law judge and any other portions of the record required by the court.

WAC 162-08-231 (emphasis added) (hyperlinks added).

LEARN MORE

–gw

Reconsideration

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning reconsideration? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt rules concerning reconsideration. See WAC 162-08-311, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

RECONSIDERATION

WAC 162-08-311 is the relevant regulation, and it addresses reconsideration rules as follows:

(1) Motion. Within ten days after being served with the final order of an administrative law judge, any party may serve and file a motion for reconsideration with the commission clerk. The motion shall identify the points that the party desires to have reconsidered and shall fully state the reasons for reconsideration. The motion shall in all other respects proceed as provided in RCW 34.05.470.

(2) Finality for appeal. When a motion for reconsideration has been filed, the order of the administrative law judge shall not be deemed final for purposes of appeal until the ruling on the motion has been served.

(3) Reconsideration not necessary for appeal. Motions for reconsideration should be made only when a party feels that the administrative law judge has overlooked or misunderstood something. It is not necessary to file a motion for reconsideration in order to appeal. RCW 34.05.470(5).

WAC 162-08-311 (emphasis added) (hyperlinks added).

LEARN MORE

–gw

Conduct of Hearings

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the rules concerning conduct of hearings? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt rules concerning conduct of hearings. See WAC 162-08-291, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

CONDUCT OF HEARINGS

WAC 162-08-291 is the relevant regulation, and it addresses rules concerning conduct of hearings as follows:

(1) Reference to law. Hearings shall be conducted in accordance with the provisions of the Administrative Procedure Act, chapter 34.05 RCW, RCW 49.60.250, and these rules.

(2) Administrative law judge presides. The administrative law judge shall preside as provided in WAC 162-08-211.

(3) Hearings shall be public. All administrative hearings shall be open to the public. Photographs and recordings of the proceedings may be made, subject to such conditions as the administrative law judge may impose to prevent interference with the orderly conduct of the hearing. Special lighting for photographic purposes may be used only if the administrative law judge has determined in advance that it will not be distracting. The administrative law judge may order news media to use one or more television cameras on a pooling basis if the number of cameras interferes with the conduct of the hearing.

(4) Record of testimony. The clerk shall determine whether the record of testimony taken at a hearing shall be made by mechanical means or by a court reporter.

(5) Copies of record. When the record has been recorded by mechanical means, rather than by a court reporter, a party ordering a copy of the record or part thereof under RCW 34.05.566 must pay the reasonable cost of transcription, as determined by the clerk, in advance of delivery of the copy. When the record is transcribed and copies of documents are made for transmittal to a reviewing court under RCW 34.05.566, the costs of transcription and copying may be charged to a nonindigent petitioner in accordance with RCW 34.05.566(3).

WAC 162-08-291 (emphasis added) (hyperlinks added).

LEARN MORE

–gw

Requests For Advanced Notice of Rule Making

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what are the guidelines concerning requests for advanced notice of rule making? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt guidelines regarding requests for advanced notice of rule making. See WAC 162-08-600, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

REQUESTS FOR ADVANCED NOTICE

WAC 162-08-600 is the relevant regulation, and it addresses requests for advanced notice of rule making as follows:

(1) Form. Requests for advance notice of rule making proceedings, as provided in RCW 34.05.320(3), shall be in writing and shall give the name of the requesting person or organization, and the address to which the notice is to be sent.

(2) Duration. Requests for advance notice of rule making proceedings will be honored for a period of three years after the date of the request, and may be renewed by written notice to the commission containing the information required for the original request.

(3) Where filed. Requests for advance notice of rule making proceedings should be filed at the Olympia office of the commission, attention rules coordinator.

WAC 162-08-600 (emphasis added) (hyperlinks added).

LEARN MORE

–gw

Sanctions

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, how are sanctions applied? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt guidelines for sanctions. See WAC 162-08-015, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

The WSHRC sanction guidelines are based on two categories: (1) Administrative Hearings; and (2) Other Hearings.

1. ADMINISTRATIVE HEARINGS (SUBSECTION 1)

DELAY/FAILURE TO COMPLY: “In a case which has been noted for hearing the administrative law judge, on his or her own initiative or on motion of a party, may order a party or counsel who uses these rules for the purpose of delay, or who fails to comply with these rules or other procedures previously ordered, to satisfy terms or pay compensatory damages including attorney’s fees to any other person who has been harmed by the delay or the failure to comply.” WAC 162-08-015 (hyperlinks added).

CONDITION PRECEDENT: “The administrative law judge may condition the right of a party to take specific action or raise specific defenses on satisfaction of the terms of the order or payment of the damages and attorney’s fees. The administrative law judge may condition the right of a counsel to participate further in the case upon satisfaction of the terms of an order or payment of the damages and attorney’s fees.” Id. (hyperlinks added).

FINAL ORDERS: “The administrative law judge shall incorporate in his or her final order any sanctions order which has not been complied with, so that the sanctions order may be enforced as provided in RCW 49.60.260 and 49.60.270 and appealed from as provided in RCW 34.05.514.” Id. (hyperlinks added).

2. OTHER HEARINGS (SUBSECTION 2)

“In a proceeding not covered by subsection (1) of this section, the chairperson of the commission may order a person or counsel who uses these rules for the purpose of delay, or who fails to comply with these rules or other procedures previously ordered, to satisfy terms, and the chairperson may condition further participation in a proceeding on compliance with these rules or orders imposing terms, but the chairperson of the commission shall not impose sanctions in the form of payment of damages or attorney’s fees.” Id. (hyperlinks added).

LEARN MORE

–gw

Procedure When None Is Specified

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what procedure is used when none is specified? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

ANY ORDERLY PROCEDURE MAY BE USED

When the commission is presented with a problem for which no procedure is specified by the Practice-and-Procedure Chapter, the Administrative Procedure Act (chapter 34.05 RCW), or the law against discrimination (chapter 49.60 RCW), then any orderly procedure may be used. WAC 162-08-019. “Appropriate procedures may be taken from the Washington civil rules for superior courts, the federal rules of civil procedure, or the rules of other administrative agencies of the state of Washington or of the United States.” Id.

BY CHAIRPERSON OR AMINISTRATIVE LAW JUDGE

Also, “[t]he chairperson of the commission or an administrative law judge may specify the procedure to be used to dispose of any matter not covered by this chapter, or any matter covered by a rule that has been waived or altered in the interest of justice under authority of WAC 162-08-013” (Interpretation & Waiver). Id. (first three hyperlinks added).

LEARN MORE

–gw

Practice & Procedure Definitions – Administrative Hearing

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Practice-and-Procedure Regulations, what is the definition of the term “Administrative Hearing”? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

DEFINITION OF ADMINISTRATIVE HEARING

WAC 162-08-017 is the relevant regulation, and it defines the term “Administrative Hearing” as follows:

“Administrative hearing” means a public hearing brought pursuant to RCW 49.60.250.

WAC 162-08-017 (emphasis added). In the Practice-and-Procedure Chapter, the term is used with the meaning given, unless the context clearly indicates another meaning. Id.

THE ADMINISTRATIVE HEARING (RCW 49.60.250)

An RCW 49.60.250 Hearing (Administrative Hearing) referenced in the definition above typically occurs when the parties associated with a complaint of discrimination fail “to reach an agreement for the elimination of such unfair practice,” and “upon the entry of findings to that effect, the entire file, including the complaint and any and all findings made, shall be certified to the chairperson of the commission.” RCW 49.60.250 (hyperlinks added). Accordingly, the Commission Chairperson must then request the following:

[T]he appointment of an administrative law judge under Title 34 RCW to hear the complaint and shall cause to be issued and served in the name of the commission a written notice, together with a copy of the complaint, as the same may have been amended, requiring the respondent to answer the charges of the complaint at a hearing before the administrative law judge, at a time and place to be specified in such notice.

Id. (hyperlinks added).

LEARN MORE

–gw

The Interrelationship Between WSHRC, WLAD & APA

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, what is the interrelationship between the WSHRC, the Washington Law Against Discrimination (WLAD), and the Administrative Procedure Act (APA)? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

WSHRC, WLAD & APA

WSHRC is a state agency established in 1949 by the Washington State Legislature. It is responsible for administering and enforcing the WLAD. Official WSHRC Website, last visited 3/21/18

WLAD “is a state law that prohibits discriminatory practices in the areas of employment, places of public resort, accommodation, or amusement, in real estate transactions, and credit and insurance transactions on the basis of race, creed, color, national origin, families with children, sex, marital status, sexual orientation, age, honorably discharged veteran or military status, or the presence of any sensory mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability; and prohibits retaliation against persons who oppose a discriminatory practice, and those who file health care and state employee whistleblower complaints.” Id.

APA is a state law enacted in 1988 to “clarify the existing law of administrative procedure, to achieve greater consistency with other states and the federal government in administrative procedure, and to provide greater public and legislative access to administrative decision making.” RCW 34.05.001.

THE INTERRELATIONSHIP

Under the WAC, chapter 162-08 governs “all commission practice and procedure before the commission, including before administrative law judges.” WAC 162-08-011 (hyperlink added).

The rules in WAC 162-08 “supplement the statutory procedures in the Administrative Procedure Act, chapter 34.05 RCW, and the law against discrimination, chapter 49.60 RCW.” Id. (hyperlink added).

“Where provisions of the law against discrimination are inconsistent with the Administrative Procedure Act, the Administrative Procedure Act governs.” Id. (hyperlink added).