Tennessee § 4-5-301 - Conduct of contested cases.

§ 4-5-301. Conduct of contested cases.

In the hearing of any contested case, the proceedings or any part thereof shall be conducted: In the presence of the requisite number of members of the agency as prescribed by law and in the presence of an administrative judge or hearing officer; or By an administrative judge or hearing officer sitting alone. It is the duty of the administrative judge or hearing officer to preside at the hearing, rule on questions of the admissibility of evidence, swear witnesses, advise the agency members as to the law of the case, and ensure that the proceedings are carried out in accordance with this chapter, other applicable law and the rules of the respective agency. At no time shall the administrative judge or hearing officer hearing a case with agency members under subsection (a) take part in the determination of a question of fact, unless the administrative judge or hearing officer is an agency member. An administrative judge or hearing officer shall, upon the judge's or the officer's own motion, or timely motion of a party, decide any procedural question of law. The agency shall determine whether a contested case shall be conducted by an administrative judge or hearing officer sitting alone or in the presence of members of the agency; provided, that administrative judges or hearing officers employed in the office of the secretary of state shall not be required to conduct a contested case sitting alone in the absence of agreement between the agency and the secretary of state. Contested cases under this section may be conducted by administrative judges or hearing officers employed in the office of the secretary of state upon the request of the agency being presented to the secretary of state and the request being granted. Any agency not authorized by law to have a contested case conducted by an administrative judge, hearing officer or similar officer from the agency shall direct that the proceedings or any part thereof be conducted by an administrative judge or hearing officer employed in the office of the secretary of state. Acts 1982, ch. 874, § 37; 1984, ch. 728, § 11. Cross-References. Number of agency members required to hear contested case, § 4-5-107 . Law Reviews. Forfeitures Under the Tennessee Drug Control Act (Lewis L. Laska), 16 Mem. St. U.L. Rev. 431 (1986). How Many Bites Are Enough? The Supreme Court's Decision in University of Tennessee v. Elliott (Robert P. Morris), 55 Tenn. L. Rev. 205 (1988). Nonacquiescence: Outlaw Agencies, Imperial Courts, and the Perils of Pluralism (Deborah Maranville), 39 Vand. L. Rev. 471 (1986). Symposium – Memphis in The Law: The Process of Determining What Process is Due: The Continuing Saga of Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978) (Donna Harkness), 41 U. Mem. L. Rev. 745 (2011). Attorney General Opinions. To the extent that it conflicts with the Uniform Administrative Procedures Act (UAPA), T.C.A. § 67-1-105(d) is superseded by the UAPA, OAG 02-071, 2002 Tenn. AG LEXIS 76 (5/29/02). If a contested case is heard by an administrative judge or hearing officer appointed by the commissioner of revenue under the authority of T.C.A. § 67-1-105(b)(2) , the conduct of the contested case is governed by the provisions of the Uniform Administrative Procedures Act applicable to proceedings conducted by an administrative judge or hearing officer sitting alone; in those cases, the hearing officer is required to issue an initial order, which is reviewable by the commissioner, OAG 02-071, 2002 Tenn. AG LEXIS 76 (5/29/02). T.C.A. §§ 4-5-301(a)(1) and 4-5-314(a) do not apply when the commissioner elects to appoint an administrative judge or hearing officer to hold a contested case hearing sitting alone and in the absence of the commissioner, OAG 02-071, 2002 Tenn. AG LEXIS 76 (5/29/02). The HUD regulations do not preempt the Administrative Procedures Act under any of the theories of implied preemption. OAG 10-105, 2010 Tenn. AG LEXIS 111 (10/15/10). The Tennessee Uniform Administrative Procedures Act (“UAPA”) does not violate the Due Process Clause. Neither Title IX of the Education Amendments of 1972 nor the Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act (“Clery Act”) preempts the UAPA contested-case provisions applicable to the adjudication of sexual assault claims involving students at Tennessee public institutions of higher education. Disciplinary proceedings in a school sexual assault case must be completed “promptly,” but neither the Due Process Clause, nor Title IX, nor the Clery Act imposes any specified or fixed time limit for the completion of a UAPA contested-case proceeding in sexual assault cases. The Due Process Clause, Title IX, and the Clery Act all require that an accuser be allowed to participate in a hearing, and the UAPA gives all parties the right to participate in a contested case hearing. To comply with the requirements of Title IX, schools must independently investigate and adjudicate allegations of student-on-student sexual harassment and assault. Title IX would likely preempt a state law requiring public institutions to refer sexual assault or similar allegations to law enforcement before suspending or expelling a student. There is currently no federally codified evidentiary standard applicable to such disciplinary proceedings. However, guidance issued by the Department of Education interpreting Title IX regulations states that schools should apply a preponderance-of-evidence standard in disciplinary proceedings related to claims of sexual assault. OAG 17-03, 2017 Tenn. AG LEXIS 3 (1/17/2017).