A Primer on Administrative Law in Oklahoma
By Gary E. Payne

“Government, after all, is a very simple thing.” Warren G. Harding

One of our great founders, James Madison, apparently did not anticipate the extent that “administrative law” and “administrative law courts” would be concocted nor how the rights and feelings of private citizens would be affected by the concept of voluminous regulations being imposed on the citizenry, not by elected officials, but by bureaucrats. Writing in the Federalist No. 62, Madison stated:

“It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood…….Every new regulation concerning commerce or revenue, or in any manner effecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens....”

Few attorneys are going to be very far into their practice before they are called upon to represent a client whose driver’s license is being revoked, who has an industrial injury, who is being fined for not maintaining a sanitary restaurant or who is being pursued for child support by the Oklahoma Department of Human Services. The Oklahoma Department of Pubic Safety, the Workers’ Compensation Court, the Oklahoma State Health Department and DHS are just a few of the many state agencies with due process hearing powers. The opportunities to represent a client before a state agency are many and varied and can, like Madison said, produce a new harvest.

Practicing before an administrative agency in Oklahoma does not have to be dreaded like a third world experience. At a minimum, there are a few basic things that must be remembered and applied. Attorneys who become familiar with administrative proceedings often add a lucrative and fulfilling dimension to their practice.

The concept of administrative due process seems elementary to some lawyers. Surprisingly, there are still many lawyers who come before an administrative law judge with no concept of the basic fundamentals of administrative due process.

This article is not meant to present an exhaustive treatise on the subject of administrative due process procedure. Instead, it is intended to present a basic primer from which attorneys can initiate their preparation for administrative hearings.

What Is Due Process?

The right to due process ensures that government agencies must proceed fairly when dealing with citizens in their day-to-day dealings with the bureaucracy. Only one imperative is stated twice in the United States Constitution. Both the Fifth Amendment and the 14th Amendment state that no one shall be “deprived of life, liberty or property without due process of law.” These “Due Process Clauses” have as their core the assurance that all levels of American government must operate within the law and provide fair procedures.1

The United States Supreme Court case of Goldbery v. Kelly, 397 U.S. 254 and similar cases have established the essential basic requirements for administrative due process. They are:

1. An unbiased tribunal.
2. Notice of the proposed action and the grounds asserted for it.
3. Opportunity to present reasons why the proposed action should not be taken.
4. The right to present evidence, including the right to call witnesses.
5. The right to know opposing evidence.
6. The right to cross-examine adverse witnesses.
7. A decision based exclusively on the evidence presented.
8. Opportunity to be represented by counsel.
9. Requirement that the tribunal prepare a record of the evidence presented.
10. Requirement that the tribunal prepare written findings of fact and reasons for its decision.

Applicable Oklahoma Authority

Every state agency charged with licensure authority and which regulates any business or vocation must provide for due process hearings if a party regulated feels aggrieved by an agency decision. Many agencies have the ability to issue or revoke a license or approve a certain use, practice or procedure. Other agencies, such as the Department of Human Services, not only issue licenses but are also charged with certain protective and collection responsibilities. A due process hearing is simply an administrative hearing conducted by an administrative law judge. Some agencies have full time administrative law judges who preside in a formal courtroom setting. Other agencies engage practicing attorneys to be contract ALJs that only serve on an “as needed” basis.

There are two fundamental legal sources a lawyer must be familiar with to practice before an administrative agency in Oklahoma. The first is the Oklahoma Administrative Procedures Act found at Title 75 of the Oklahoma Statutes, Sections 250 through 323, (the OAPA). The second is the Oklahoma Administrative Code , (OAC), which is maintained by the Office of Administrative Rules in the Office of the Secretary of State.2 Article 1 of the OAPA provides that the Legislature may delegate rulemaking authority to administrative agencies.

As stated on the Oklahoma Secretary of State Web site, “the Office of Administrative Rules (OAR) is responsible for publishing The Oklahoma Administrative Code and The Oklahoma Register and implementing the provisions of Article 1 of the Administrative Procedures Act [75 O.S., Sections 250 et seq.]. The OAR maintains the official records of the state’s rules and rulemaking notices, and provides assistance to approximately 150 regulatory agencies in the rulemaking process.”

Every state agency is responsible for adopting rules and regulations consistent with the particular legislative provisions that create and empower the agency. The OAC is the official compilation of agency rules and executive orders for the state of Oklahoma. The code is revised annually in the form of cumulative supplements.

The Oklahoma Register is a semi-monthly publication, which serves as supplementation between publications of the annual supplements. The Oklahoma Register includes new rules, amendments, revisions and revocations of existing rules, emergency rules, notices of proposed rules and the rule making process and executive orders.

Many state agencies have proposed rules and regulations pending throughout the year. They are often written to comply with various changes in state or federal law or, to be consistent with federal regulations that may be applicable to a particular agency. When a state agency has the responsibility for regulating federal programs or, when a state agency receives funding from the federal government, the United States Code and/or the United States Code of Federal Regulations generally apply as well. Both the USC and the CFR are freely accessible by Internet search.3

Most state agencies maintain a Web site which explains the various agency statutory and regulatory duties and gives reference to its statutes and regulations. Some agencies also have certain forms that have to be used in administrative proceedings and those may usually be found on the Web site as well.

When an attorney is engaged to represent a client before any agency of state government there are certain things that must be done as a minimum. First, the attorney should read the applicable statutes under which the agency is created and empowered and which give authority to the action being taken. Second, the attorney should read the rules and regulations, both state and federal that apply to the situation including the OAPA. Third, the attorney should view the agency Web site or call the particular agency to determine how agency hearings are conducted. Some agencies simply record the proceedings for later transcription if needed by a party or court. Other agencies, such as the Corporation Commission, are more formal and rely on the use of court reporters to chronical their proceedings.

Attorneys need to determine in each case if the hearing is initiated by action taken by an agency employee, such as an investigator with the authority to issue citations, or by the board or commission of the agency. If the action involves a vote of a board or commission than the Oklahoma Open Meeting Act, (23 O.S. §307) will apply. In those types of cases, the attorney should obtain a copy of all agency minutes that relate to the proceedings. Note that some agencies are only authorized to make a determination to refer a complaint to the appropriate authority based on facts revealed in its nonadjudicative, administrative investigations.4

Burden of Proof

In the case of Johnson v. Bd. Of Gov. of Regist. Dentists, 913 P.2d 1339, 1996, the Oklahoma Supreme Court stated: “This court has consistently recognized where it is necessary to procure a license in order to carry on a chosen profession or business, the power to revoke a license, once granted, and thus destroy in a measure the means of livelihood, is penal and therefore should be strictly construed.”5 The court declared that the loss of a professional license is more than a monetary loss; it is a loss of a person’s livelihood and loss of a reputation and is a constitutionally protected property interest, which must be afforded due process.6 For these reasons, the court determined that the standard of proof for license revocation proceedings against a person holding a professional license is a clear-and-convincing-evidence standard.7

The Oklahoma Uniform Jury Instructions, (Number 3.2) defines clear and convincing evidence as follows: “When I say that a party has the burden of proving any proposition by clear and convincing evidence, I mean that you must be persuaded, considering all the evidence in the case, that the proposition on which the party has this burden of proof is highly probable and free from serious doubt.”8

In any case not involving a license, the standard of proof used in administrative law proceedings is preponderance of the evidence.9 (See OUJI number 3.1)10

Unique Requirements Imposed

One thing unique about an administrative decision is that Section 312 of the OAPA requires that every final agency order adverse to a party must include findings of fact and conclusions of law, separately stated. Further, the statutes require that a findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.

Right of Appeal

Any party aggrieved by an agency decision generally has two courses of action that can be taken. First, any final agency order is subject to rehearing, reopening or reconsideration by the administrative head of the agency. The grounds for such action are limited to the following five reasons: (1) newly discovered or newly available evidence, relevant to the issues; (2) need for additional evidence adequately to develop the facts essential to proper decision; (3) probable error committed by the agency in the proceeding or in its decision such as would be ground for reversal on judicial review of the final agency order; (4) need for further consideration of the issues and the evidence in the public interest; or (5), a showing that issues not previously considered ought to be examined in order properly to dispose of the matter. (APA §317)

In addition to the choices listed above, any party aggrieved by a final agency order in an individual proceeding is entitled to file a petition, in the district court of the county in which the party seeking review resides, or at the option of such party, where the property interest affected is situated, within thirty days after the appellant is notified of the final agency order. (OAPA §318). The party aggrieved by the final agency order may be entitled to recover against such agency any court costs, witness fees, and reasonable attorney fees if the court determines that the proceeding brought by the agency is frivolous.

In any discussion of appeal from an administrative order, two United States Supreme Court cases should be examined, the Chevron case and Bishop v. Wood. Chevron articulated a two-step analysis of statutory interpretation: The first (judicial) step is to determine the possible meanings of the statute, and the second (agency) step is to choose among those possibilities. Chevron held that courts must accept agencies’ “reasonable” interpretations of statutes if those interpretations fall within the possible range of a statute’s terms. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

In Bishop v. Wood, 426 U.S. 341 (1976), a divided Supreme Court stated that the federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies. It went on to say that numerous individual mistakes are inevitable in the day-to-day administration of our affairs and that the United States Constitution cannot feasibly be construed to require federal judicial review for every such error. The court concluded that the Due Process Clause of the 14th Amendment is not a guarantee against incorrect or ill-advised personnel decisions.

Application

It is important to note that the rules and regulations of state agencies are not static. Attorneys should check for revisions of agency rules the same way as they should check for statutory changes. Second, the rules regulating state agencies are not monolithic. Every agency has unique rules. As an example, the Commissioner of the Oklahoma State Department of Health, by both statute and regulation, can designate an administrative law judge to issue a final agency order. The Oklahoma Tax Commission has special rules that must be followed regarding an appeal from that agency which involve the posting of a bond and other requirements.11

Most state agencies such as the Department of Human Services and the Oklahoma Employment Security Commission provide informative brochures to attorneys and citizens outlining the necessary procedures for due process hearings. It is advisable to obtain any such information prior to attending a hearing.

Several cases involving appeals from administrative agencies have been published. Any attorney representing a client before a particular state agency should read published decisions. As an example, any attorney appearing before the Oklahoma Employment Security Commission Appeal Tribunal or Board of Review should be familiar with the unique nuances in the Tynes v. Uniroyal Tire Co., 679 P.2d 1310, (Okla 1984). In that case, the Supreme Court determined that the Oklahoma Employment Security Act, (40 O.S. 1981 § 2-406) did not provide a definition of misconduct connected with an employee’s last work so the Court imposed it’s own definition. The Court also determined that in unemployment benefit cases, the burden of proof is upon the claimant to show she qualifies for unemployment compensation and upon the employer to show claimant was guilty of misconduct.

Many administrative hearings consider complex and protracted matters involving unique provisions of law and highly technical issues. In cases such as this, it is usually advisable to refer the matter to an attorney who specializes in that particular area of law.

Summary

It is well for all attorneys to remember the quote of Justice Frankfurter in the landmark decision of Youngstown Sheet & Tube Co. et al. v. Sawyer, 344, U.S. 579 (1952). He was struggling with the issue of separation of powers between the executive and judicial branch of government and quoted an admonition of Justice Marshall: “The great ordinances of the Constitution do not establish and divide fields of black and white.” Justice Frankfurter, unlike President Harding, realized that we do not live in a fairytale world when it comes to our laws.

Both the state and federal constitutions guarantee certain procedural safeguards for the citizens of Oklahoma. Government agencies have grown significantly over the last few years and their regulatory authority over citizens has expanded. Knowledge of laws, codes, precedents, government regulations, executive orders and agency rules is imperative to the attorney representing a client before a state agency.

Administrative decisions must be based upon adequate findings which, in turn, must be supported by substantial evidence in the record. It is the attorney’s responsibility to make sure every client’s rights are insured and protected. The attorney must know how to make and protect the record in an administrative hearing which cannot be done without a working knowledge of the rules and procedures of a particular agency.

Lawyers must remember the motive of an agency conducting an administrative due process hearing in compliance with constitutional due process requirements. Agencies involved in due process hearings are generally trying to deprive an individual of certain interests (“life, liberty, or property”). Due process hearings are adversarial proceedings. Agency action can result in a permanent record being created. It can have a monetary affect and can be quite punitive. Attorneys must possess a working knowledge of the rules of engagement in order to properly represent their clients.

1. For a good article describing the history and evolution of due process in America, see “Due Process” by Peter Strauss published by the Cornell University Law School Journal at “www.law.cornell.edu/wex/index.php/Due_process”
2. The entire Oklahoma Administrative Code is accessible for free from the Oklahoma Secretary of State Web site.
3. http://uscode.house.gov/search/criteria.shtml and http://gpoaccess.gov/cfr/index.html
4. Walters v. Oklahoma Ethics Com’n, 1987 OK 103; 746 P.2d 172; Grand River Dam Authority v. State, 645 P.2d 1011, (Okla. 1982).
5. See also State ex rel. Oklahoma State Board of Embalmers and Funeral Directors v. Guardian Funeral Home, 429 P.2d 732, 733, 736 (Okla. 1967); Board of Examiners of Veterinary Medicine v. Mohr, 485 P.2d 235, 240 (Okla. 1971).
6. See Okla.Stat.Tit. 59, § 328.32 (1991); Barry v. Barchi, 443 U.S. 55, 64, 99 S.Ct. 2642, 2649, 61 L.Ed.2d 365 (1979); Perry v. Sindermann, 408 U.S. 593, 601, 92 S. Ct. 2694, 2699-700, 33 L.Ed.2d 570 (1972).
7. State ex rel. State Bd. of Official Shorthand Reporters v. Isbell, 803 P.2d 1143 (Okla. 1990); State ex rel. Oklahoma Bar Association v. McMillian, 770 P.2d 892, 895, n. 6 (Okla. 1989).
8. See Matter of C.G., 637 P.2d 66, 77 n.12 (Okla. 1981) (“Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established.”), and the cases cited.
9. Cherokee Data Computer Parts and Service, Inc. v. Okla. Dept. of Labor, 122 P.3d 56 (2005).
10. This instruction uses “greater weight of the evidence” instead of “preponderance of the evidence” to make the instruction more understandable to jurors. The words have the same meaning, and no change is intended in the standard of proof for civil cases. See Henderson v. State, 568 P.2d 297, 298 (Okla. Crim. App. 1982) (“A preponderance of the evidence has been defined by this Court to mean simply the greater weight of evidence.”); Black’s Law Dictionary 1182 (6th ed. 1990).
11. A 2002 article entitled “Sales And Use Tax Procedures:

Administrative and Judicial” by Richard B. Kells of Hartzog Conger Cason & Neville in Oklahoma City provides a good explanation of OTC procedures.

About The Author

Gary Payne is Chief Administrative Law Judge of the Oklahoma State Department of Health. He is a graduate of the OU College of Law, was a member of the Oklahoma House of Representatives,served for 10 years as an appellate administrative law judge on the Board of Review for the Oklahoma Employment Securities Commission, has served as a municipal judge and is an appeal judge forDepartment of Education disability due process hearings.

A Primer on Administrative Law in Oklahoma
Published 79 OBJ 39 (January 12, 2008)