For state employees, one of the most important state agencies is one they hope they never need to use. But if they do, Director Judge Julian Mann II wants them to be confident in the impartiality of the North Carolina Office of Administrative Hearings.

“Is there just cause or not?” he said, explaining the basis on which all OAH determinations are made. “It’s just that simple.”

The OAH, which was established by the General Assembly in 1985, is an independent, quasi-judicial agency created to protect the due process rights of North Carolinians during interactions with state government. That includes the due process rights of businesses challenging regulatory decisions, citizens challenging licensure decisions and, of course, state employees challenging employment decisions.

Mann estimates there are more than 100 different causes of action that come before the OAH, and he said, “they’re all important.”

To protect those due process and property rights, the OAH is divided into three divisions – Hearings, Rules and Civil Rights.

Of those, the Hearings Division is likely the most well-known. True to its name, it’s the division that hears contested cases – those in which the petitioner is claiming a state agency:

• Deprived you of property
• Required you to pay a fine or civil penalty
• Substantially prejudiced your rights

And that a state agency:

• Exceeded its authority or jurisdiction
• Acted erroneously
• Failed to use proper procedures
• Acted arbitrarily or capriciously
• Failed to act as required by law

Petitioners in these cases can include businesses, private citizens or state employees. The OAH then works with all parties to first see if a settlement is possible and if not, to ensure the administrative hearing is held in a neutral and impartial manner.

 

The Civil Rights Division was created specifically to deal with discrimination claims forwarded to it by the Equal Employment Opportunity Commission from previous and current employees and applicants covered by the State Personnel Act, as well as some county government employees.

If alleging employment discrimination, employees can file an EEOC charge directly and confidentially with the Civil Rights Division without exhausting all of their agency’s in-house procedures. However, if employees want to preserve their right to appeal a discrimination, harassment or retaliation complaint to the OAH Hearings Division, they must first exhaust their agency’s internal grievance process, which is started by filing a complaint with the agency’s EEO officer or affirmative action officer within 15 calendar days of the alleged discriminatory or retaliatory action that is the basis of their complaint. This applies to:

• Non-exempt state government employees
• Non-exempt UNC employees
• County employees in social services,  mental health, public health and civil preparedness

It is, Mann said, a critical component of making sure North Carolina’s state employees are treated fairly and equitably.

Finally, the Rules Division also has an important impact on state employees, as well as other North Carolina citizens. Its role is to review and approve the rules governing the operations of all state agencies and licensing boards.

If it were up to him, Mann said, the Rules Division would be a lot busier than it already is, with more processes and procedures for state agencies being decided through rule-making, not politics.

“That gives everyone notice of what’s expected,” he said. “When you have clear regulations then compliance follows both by those who are regulated and those who are regulating.”

Staying Impartial

But for state employees and others who rely on the OAH’s 11 administrative law judges to act as independent arbiters, the question remains as to why they should be confident in this state agency.

Fortunately, that’s a question that Judge Mann, who comes from a long family line of state employees, is more than happy to answer.

“The best protection for any state employee is to focus on doing the very best job they can do for the state for North Carolina,” he said. “That’s the greatest protection, having grown up in a household with state employees (myself).”

But, he added, if they find themselves in a position in which they need the services of the OAH, they can be assured that they will be in front of a “detached” and “impartial” judge who will “hear the facts of the case and apply the law to them.”

He explained that when before he appoints new administrative law judges, they are put through a significant and independent vetting process to make sure they are up to the job.

“By the time we go through the (vetting) process, I can’t miss and the state is going to get a good judge. Then, after you get the best judge you can, you leave them alone to apply the law to the facts,” he said.

Still, he recognizes that because the OAH is a state agency there are political threats to its survival, despite – or perhaps because of – its impartiality from any other state agency. And unfortunately, he said, the OAH does not have the same protections from such threats as the judicial system.

Such was the case during the most recent budget negotiations when Gov. Pat McCrory attempted to remove two administrative law judges from OAH and place them in the Office of State Human Resources where they would have been the sole hearing officers for state employee appeals. That provision, which SEANC opposed, would have eliminated the impartiality necessary to protect due process. Fortunately, thanks in large part to SEANC’s lobbying efforts and the leadership of Sen. Tommy Tucker (R-Union), this provision was eventually dropped by the General Assembly.

“I feel like we’ve gained credibility with the legislature over the years,” Mann said. “When you come to an administrative hearing in this office, the decision will based upon the record. And if you depart from that, then you lose credibility.”

And for Mann, currently in his seventh four-year term having been first appointed by the state Supreme Court Chief Justice in December 1980, maintaining that credibility is critical.

“I had no idea the difficulty of this job and how difficult it would be to create a system that is fair and impartial, and I never dreamed it would become my life’s work,” he said. “But I think we’re very close to getting it right.”