SB2073 94TH GENERAL ASSEMBLY

LRB094 11360 RCE 42222 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB2073

Introduced 2/25/2005, by Sen. Don Harmon

SYNOPSIS AS INTRODUCED:

5 ILCS 100/1-5	from Ch. 127, par. 1001-5
5 ILCS 100/1-13 new
5 ILCS 100/1-15	from Ch. 127, par. 1001-15
5 ILCS 100/1-30	from Ch. 127, par. 1001-30
5 ILCS 100/10-3 new
5 ILCS 100/10-5	from Ch. 127, par. 1010-5
5 ILCS 100/10-15	from Ch. 127, par. 1010-15
5 ILCS 100/10-20	from Ch. 127, par. 1010-20
5 ILCS 100/10-25	from Ch. 127, par. 1010-25
5 ILCS 100/10-45	from Ch. 127, par. 1010-45
5 ILCS 100/10-50	from Ch. 127, par. 1010-50
5 ILCS 100/10-60	from Ch. 127, par. 1010-60
5 ILCS 100/10-65	from Ch. 127, par. 1010-65
5 ILCS 100/Art. 12 heading new
5 ILCS 100/12-5 new
5 ILCS 100/12-10 new
5 ILCS 100/12-15 new
5 ILCS 100/12-20 new
5 ILCS 100/12-25 new
5 ILCS 100/12-30 new
5 ILCS 100/12-35 new
5 ILCS 100/12-40 new
20 ILCS 415/4c	from Ch. 127, par. 63b104c

Amends the Illinois Administrative Procedure Act to create the Office of Administrative Hearings. Provides that the Office shall conduct administrative hearings for agencies under the jurisdiction of the Governor, except for the Illinois Public Labor Relations Board, the Illinois Educational Labor Relations Board, the Illinois Commerce Commission, the Illinois Workers' Compensation Commission, the Civil Service Commission, the Pollution Control Board, the Illinois State Police Merit Board, the Property Tax Appeal Board, the Human Rights Commission, and the State Board of Elections. Provides for the appointment of a Chief Administrative Law Judge by the Governor with the advice and consent of the Senate. Sets the powers and duties of the Chief Administrative Law Judge. Sets qualifications for administrative law judges employed by the Office. Sets out procedures for the conduct of administrative hearings by the Office. Provides for the transfer of personnel and property to the Office from State agencies. Amends the Personnel Code to exempt employees of the Office from the provisions of the Code. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning administrative hearings.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Administrative Procedure Act is amended by changing Sections 1-5, 1-15, 1-30, 10-5, 10-15, 10-20, 10-25, 10-45, 10-50, 10-60, and 10-65 and adding Sections 1-13 and 10-3 and Article 12 as follows:

(5 ILCS 100/1-5) (from Ch. 127, par. 1001-5)

Sec. 1-5. Applicability.

(a) This Act applies to every agency as defined in this Act. Beginning January 1, 1978, in case of conflict between the provisions of this Act and the Act creating or conferring power on an agency, this Act shall control. If, however, an agency (or its predecessor in the case of an agency that has been consolidated or reorganized) has existing procedures on July 1, 1977, specifically for contested cases or licensing, those existing provisions control, except that this exception respecting contested cases and licensing does not apply if the Act creating or conferring power on the agency adopts by express reference the provisions of this Act. Where the Act creating or conferring power on an agency establishes administrative procedures not covered by this Act, those procedures shall remain in effect.

(b) The provisions of this Act do not apply to (i) preliminary hearings, investigations, or practices where no final determinations affecting State funding are made by the State Board of Education, (ii) legal opinions issued under Section 2-3.7 of the School Code, (iii) as to State colleges and universities, their disciplinary and grievance proceedings, academic irregularity and capricious grading proceedings, and admission standards and procedures, and (iv) the class specifications for positions and individual position descriptions prepared and maintained under the Personnel Code. Those class specifications shall, however, be made reasonably available to the public for inspection and copying. The provisions of this Act do not apply to hearings under Section 20 of the Uniform Disposition of Unclaimed Property Act.

(c) Section 5-35 of this Act relating to procedures for rulemaking does not apply to the following:

(1) Rules adopted by the Pollution Control Board that, in accordance with Section 7.2 of the Environmental Protection Act, are identical in substance to federal regulations or amendments to those regulations implementing the following: Sections 3001, 3002, 3003, 3004, 3005, and 9003 of the Solid Waste Disposal Act; Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980; Sections 307(b), 307(c), 307(d), 402(b)(8), and 402(b)(9) of the Federal Water Pollution Control Act; and Sections 1412(b), 1414(c), 1417(a), 1421, and 1445(a) of the Safe Drinking Water Act.

(2) Rules adopted by the Pollution Control Board that establish or amend standards for the emission of hydrocarbons and carbon monoxide from gasoline powered motor vehicles subject to inspection under Section 13A-105 of the Vehicle Emissions Inspection Law and rules adopted under Section 13B-20 of the Vehicle Emissions Inspection Law of 1995.

(3) Procedural rules adopted by the Pollution Control Board governing requests for exceptions under Section 14.2 of the Environmental Protection Act.

(4) The Pollution Control Board's grant, pursuant to an adjudicatory determination, of an adjusted standard for persons who can justify an adjustment consistent with subsection (a) of Section 27 of the Environmental Protection Act.

(5) Rules adopted by the Pollution Control Board that are identical in substance to the regulations adopted by the Office of the State Fire Marshal under clause (ii) of paragraph (b) of subsection (3) of Section 2 of the Gasoline Storage Act.

(d) Pay rates established under Section 8a of the Personnel Code shall be amended or repealed pursuant to the process set forth in Section 5-50 within 30 days after it becomes necessary to do so due to a conflict between the rates and the terms of a collective bargaining agreement covering the compensation of an employee subject to that Code.

(e) Section 10-45 of this Act shall not apply to any hearing, proceeding, or investigation conducted under Section 13-515 of the Public Utilities Act.

(f) Article 10 of this Act does not apply to any hearing, proceeding, or investigation conducted by the State Council for the State of Illinois created under Section 3-3-11.05 of the Unified Code of Corrections or by the Interstate Commission Commision for Adult Offender Supervision created under the Interstate Compact for Adult Offender Supervision.

(Source: P.A. 92-571, eff. 6-26-02; revised 7-25-02.)

(5 ILCS 100/1-13 new)

Sec. 1-13. "Administrative hearing" means any hearing required to comply with the provisions of this Act concerning a contested case.

(5 ILCS 100/1-15) (from Ch. 127, par. 1001-15)

Sec. 1-15. "Administrative law judge" means the presiding officer or officers at the initial administrative hearing before each agency and each continuation of that administrative hearing. The term also includes but is not limited to hearing examiners, hearing officers, referees, and arbitrators.

(Source: P.A. 87-823.)

(5 ILCS 100/1-30) (from Ch. 127, par. 1001-30)

Sec. 1-30. "Contested case" means an adjudicatory proceeding (not including ratemaking, rulemaking, or quasi-legislative, informational, or similar proceedings) in which the individual legal rights, duties, or privileges of a party are required by law to be determined by an agency only after an opportunity for an administrative a hearing.

(Source: P.A. 87-823.)

(5 ILCS 100/10-3 new)

Sec. 10-3. Applicability. This Article applies to all agencies not covered by Article 12.

(5 ILCS 100/10-5) (from Ch. 127, par. 1010-5)

Sec. 10-5. Rules required for hearings. All agencies shall adopt rules establishing procedures for administrative contested case hearings.

(Source: P.A. 87-823.)

(5 ILCS 100/10-15) (from Ch. 127, par. 1010-15)

Sec. 10-15. Standard of proof. Unless otherwise provided by law or stated in the agency's rules, the standard of proof in any administrative contested case hearing conducted under this Act by an agency shall be the preponderance of the evidence.

(Source: P.A. 87-823.)

(5 ILCS 100/10-20) (from Ch. 127, par. 1010-20)

Sec. 10-20. Qualifications of administrative law judges. All Agencies shall adopt rules concerning the minimum qualifications of administrative law judges for administrative contested case hearings not subject to Article 12 of this Act. The agency head or an attorney licensed to practice law in Illinois may act as an administrative law judge or panel for an agency without adopting any rules under this Section. The These rules may be adopted using the procedures in either Section 5-15 or 5-35.

(Source: P.A. 87-823.)

(5 ILCS 100/10-25) (from Ch. 127, par. 1010-25)

Sec. 10-25. Notice of contested cases; administrative notice; hearing.

(a) In a contested case, all parties shall be afforded an opportunity for an administrative a hearing after reasonable notice. The notice shall be served personally or by certified or registered mail or as otherwise provided by law upon the parties or their agents appointed to receive service of process and shall include the following:

(1) A statement of the time, place, and nature of the administrative hearing.

(2) A statement of the legal authority and jurisdiction under which the administrative hearing is to be held.

(3) A reference to the particular Sections of the substantive and procedural statutes and rules involved.

(4) Except where a more detailed statement is otherwise provided for by law, a short and plain statement of the matters asserted, the consequences of a failure to respond, and the official file or other reference number.

(5) The names and mailing addresses of the administrative law judge, all parties, and all other persons to whom the agency gives notice of the administrative hearing unless otherwise confidential by law.

(b) An opportunity shall be afforded all parties to be represented by legal counsel and to respond and present evidence and argument.

(c) Unless precluded by law, disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default.

(Source: P.A. 87-823.)

(5 ILCS 100/10-45) (from Ch. 127, par. 1010-45)

Sec. 10-45. Proposal for decision. Except where otherwise expressly provided by law, when in a contested case a majority of the officials of the agency who are to render the final decision has not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency, shall not be made until a proposal for decision is served upon the parties and an opportunity is afforded to each party adversely affected to file exceptions and to present a brief and, if the agency so permits, oral argument to the agency officials who are to render the decision. The proposal for decision shall contain a statement of the reasons therefor and of each issue of fact or law necessary to the proposed decision and shall be prepared by the persons who conducted the administrative hearing or one who has read the record.

(Source: P.A. 87-823.)

(5 ILCS 100/10-50) (from Ch. 127, par. 1010-50)

Sec. 10-50. Decisions and orders.

(a) A final decision or order adverse to a party (other than the agency) in a contested case shall be in writing or stated on in the record. A final decision shall include findings of fact and conclusions of law, separately stated. 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. If, in accordance with agency rules, a party submitted proposed findings of fact, the decision shall include a ruling upon each proposed finding. Parties or their agents appointed to receive service of process shall be notified either personally or by registered or certified mail of any decision or order. Upon request a copy of the decision or order shall be delivered or mailed forthwith to each party and to each his attorney of record.

(b) All agency orders shall specify whether they are final and subject to the Administrative Review Law.

(c) A decision by any agency in a contested case under this Act shall be void unless the proceedings are conducted in compliance with the provisions of this Act relating to contested cases, except to the extent those provisions are waived under Section 10-70 and except to the extent the agency has adopted its own rules for contested cases as authorized in Section 1-5.

(Source: P.A. 92-16, eff. 6-28-01.)

(5 ILCS 100/10-60) (from Ch. 127, par. 1010-60)

Sec. 10-60. Ex parte communications.

(a) Except in the disposition of matters that agencies are authorized by law to entertain or dispose of on an ex parte basis, agency heads, agency employees, and administrative law judges shall not, after notice of hearing in a contested case or licensing to which the procedures of a contested case apply under this Act, communicate, directly or indirectly, in connection with any issue of fact, with any person or party, or in connection with any other issue with any party or the representative of any party, without except upon notice and opportunity for all parties to participate.

(b) However, an agency member may communicate with other members of the agency, and an agency member or administrative law judge may have the aid and advice of one or more personal assistants.

(c) An ex parte communication received by any agency head, agency employee, or administrative law judge shall be made a part of the record of the pending matter, including all written communications, all written responses to the communications, and a memorandum stating the substance of all oral communications and all responses made and the identity of each person from whom the ex parte communication was received.

(d) Communications regarding matters of procedure and practice, such as the format of pleadings, number of copies required, manner of service, scheduling, and status of proceedings, are not considered ex parte communications under this Section.

(Source: P.A. 87-823.)

(5 ILCS 100/10-65) (from Ch. 127, par. 1010-65)

Sec. 10-65. Licenses.

(a) When any licensing is required by law to be preceded by notice and an opportunity for an administrative a hearing, the provisions of this Act concerning contested cases shall apply.

(b) When a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license shall continue in full force and effect until the final agency decision on the application has been made unless a later date is fixed by order of a reviewing court.

(c) An application for the renewal of a license or a new license shall include the applicant's social security number. Each agency shall require the licensee to certify on the application form, under penalty of perjury, that he or she is not more than 30 days delinquent in complying with a child support order. Every application shall state that failure to so certify shall result in disciplinary action, and that making a false statement may subject the licensee to contempt of court. The agency shall notify each applicant or licensee who acknowledges a delinquency or who, contrary to his or her certification, is found to be delinquent or who after receiving notice, fails to comply with a subpoena or warrant relating to a paternity or a child support proceeding, that the agency intends to take disciplinary action. Accordingly, the agency shall provide written notice of the facts or conduct upon which the agency will rely to support its proposed action and the applicant or licensee shall be given an opportunity for an administrative a hearing in accordance with the provisions of the Act concerning contested cases. Any delinquency in complying with a child support order can be remedied by arranging for payment of past due and current support. Any failure to comply with a subpoena or warrant relating to a paternity or child support proceeding can be remedied by complying with the subpoena or warrant. Upon a final finding of delinquency or failure to comply with a subpoena or warrant, the agency shall suspend, revoke, or refuse to issue or renew the license. In cases in which the Department of Public Aid has previously determined that an applicant or a licensee is more than 30 days delinquent in the payment of child support and has subsequently certified the delinquency to the licensing agency, and in cases in which a court has previously determined that an applicant or licensee has been in violation of the Non-Support Punishment Act for more than 60 days, the licensing agency shall refuse to issue or renew or shall revoke or suspend that person's license based solely upon the certification of delinquency made by the Department of Public Aid or the certification of violation made by the court. Further process, hearings, or redetermination of the delinquency or violation by the licensing agency shall not be required. The licensing agency may issue or renew a license if the licensee has arranged for payment of past and current child support obligations in a manner satisfactory to the Department of Public Aid or the court. The licensing agency may impose conditions, restrictions, or disciplinary action upon that license.

(d) Except as provided in subsection (c), no agency shall revoke, suspend, annul, withdraw, amend materially, or refuse to renew any valid license without first giving written notice to the licensee of the facts or conduct upon which the agency will rely to support its proposed action and an opportunity for an administrative a hearing in accordance with the provisions of this Act concerning contested cases. At the administrative hearing, the licensee shall have the right to show compliance with all lawful requirements for the retention, continuation, or renewal of the license. If, however, the agency finds that the public interest, safety, or welfare imperatively requires emergency action, and if the agency incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. Those proceedings shall be promptly instituted and determined.

(e) Any application for renewal of a license that contains required and relevant information, data, material, or circumstances that were not contained in an application for the existing license shall be subject to the provisions of subsection (a).

(Source: P.A. 90-18, eff. 7-1-99; 91-613, eff. 10-1-99.)

(5 ILCS 100/Art. 12 heading new)

ARTICLE 12. OFFICE OF ADMINISTRATIVE HEARINGS

(5 ILCS 100/12-5 new)

Sec. 12-5. Applicability. This Article applies to all agencies under the jurisdiction of the Governor other than the following:

(a) Illinois Labor Relations Boards created under the Illinois Public Labor Relations Act;

(b) Illinois Educational Labor Relations Board;

(c) Illinois Commerce Commission;

(d) Illinois Workers' Compensation Commission;

(e) Civil Service Commission;

(f) Pollution Control Board;

(g) Illinois State Police Merit Board;

(h) Property Tax Appeal Board;

(i) Human Rights Commission; and

(j) State Board of Elections.

(5 ILCS 100/12-10 new)

Sec. 12-10. Office of Administrative Hearings.

(a) The Office of Administrative Hearings, hereinafter referred to as the Office, is established for the purpose of improving public trust and confidence in administrative adjudication by:

(1) separating the adjudicatory function from the investigatory, prosecutory, and policy-making functions of agencies in the executive branch;

(2) establishing a professional corp of administrative law judges;

(3) establishing greater uniformity in the rules of procedure and evidence in administrative adjudication; and

(4) eliminating unnecessary and duplicative costs in administrative adjudication.

(b) The Office is an independent State agency in the executive branch and is responsible for conducting administrative hearings in accordance with the legislative intent expressed by this Act.

(c) The Office is under the administration, supervision, and direction of a Chief Administrative Law Judge, appointed by the Governor, by and with the advice and consent of the Senate. The Chief Administrative Law Judge, as a condition of appointment, must have been admitted to practice law in the State of Illinois for at least 10 years, must have substantial knowledge and experience suitable to the duties of the Office, and may be removed only for good cause following notice and an opportunity for an adjudicative hearing.

(d) The Chief Administrative Law Judge must maintain his or her principal office in Springfield and may maintain any other offices that may be necessary.

(e) The Office may purchase or lease any equipment and supplies that may be necessary to carry out its duties and must maintain records and files of the work of the Office.

(f) The Office of Administrative Hearings by and through the Chief Administrative Law Judge and any Administrative Law Judge under this Article is empowered to subpoena and bring before it, him, or her any person in this State and to take testimony, in person or by telephone, upon payment of the same fees, and in the same manner as is prescribed by law for judicial proceedings in civil cases in the courts of this State. The term "Administrative Law Judge" as used in this Article means an administrative law judge as defined in 5 ILCS 100/1-15 who is an employee of the Office.

(g) The Office may enter into an interagency agreement with any agency to furnish administrative law judges to conduct administrative hearings not otherwise required to be conducted by the Office. The Office may also enter into an agreement with a unit of local government or school district to furnish administrative law judges to conduct administrative hearings.

(h) Any finding, determination, ruling or order issued as result of any hearing conducted for any public entity subject to or contracted for under this Article shall have the same status and be subject to the same conditions and limitations as if conducted by that public entity. That entity shall remain the proper party named and served in any action in administrative review under the provisions of the Administrative Review Law or other review or appeal provision provided by law.

(i) The Office must develop and institute a program of continuing education and training for administrative law judges and may permit administrative law judges and hearing examiners employed by other agencies to participate in its program. The Office shall also develop and implement a code of professional conduct for its administrative law judges, incorporating the provisions of the Rules of Judicial Conduct whenever possible. The Office may develop and institute other educational programs in the area of administrative law and procedure for the benefit of State employees and those who participate in administrative hearings.

(5 ILCS 100/12-15 new)

Sec. 12-15. Term of office and salary.

(a) The Chief Administrative Law Judge shall serve for a term of 6 years, provided that he or she shall hold office until a successor is appointed.

(b) The Chief Administrative Law Judge shall receive an annual salary as set by the Governor of Illinois from time to time or the amount established by the Compensation Review Board, whichever is greater.

(5 ILCS 100/12-20 new)

Sec. 12-20. Oath. Each prospective Chief Administrative Law Judge, before taking office, must take and subscribe to the oath or affirmation prescribed by Section 3 of Article XIII of the Illinois Constitution, an executed copy of which must be filed with the Secretary of State.

(5 ILCS 100/12-25 new)

Sec. 12-25. Powers and Duties of the Chief Administrative Law Judge. The Chief Administrative Law Judge has the following powers and duties:

(a) The Chief Administrative Law Judge may employ Administrative Law Judges that are necessary to carry out the purposes of this Article.

(b) Administrative Law Judges and their immediate supervisors shall be subject to Jurisdiction A, B and C of the Personnel Code, except that provisions contained in 20 ILCS 415/8b.18 and 19 shall not apply.

(c) Except as otherwise provided in Section 12-40 of this Article, an Administrative Law Judge must have been admitted to practice as an attorney in this State for at least 5 years and must have a demonstrated knowledge of and experience in administrative law and procedure that is suitable to the duties of the Office. Supervisors of Administrative Law Judges must be experienced administrative law judges.

(d) The Chief Administrative Law Judge may contract for the services of an attorney to serve as a special administrative law judge when necessary.

(e) The Chief Administrative Law Judge must adopt a code of conduct and rules concerning the discipline and termination of Office Administrative Law Judges and the resolution of grievances, subject to any collective bargaining agreement.

(f) The Chief Administrative Law Judge may employ and direct other staff, including administrative, supervisory, clerical, and other specialized or technical personnel that may be necessary to carry out the purposes of this Article.

(g) The Chief Administrative Law Judge must assign an administrative law judge for any proceeding that is required by this Article to be conducted by the Office and for any proceeding for which the Office has agreed to furnish an administrative law judge as provided in Section 12-10 of this Act.

(h) Any administrative law judge so assigned does not become an employee of the agency during the assignment and is not subject to the direction or the supervision of the agency to whose proceeding the administrative law judge has been assigned.

(i) In assigning administrative law judges, the Chief Administrative Law Judge must, when possible, use personnel having knowledge, training, or experience in the field or subject matter of the hearing and assign administrative law judges primarily to the hearings of particular agencies on a long-term basis. The Chief Administrative Law Judge may act as an administrative law judge in a particular case when appropriate under law.

(j) The Chief Administrative Law Judge shall adopt uniform rules of procedure and evidence governing hearings conducted by the Office of Administrative Hearings. Rules adopted by the Chief Administrative Law Judge shall supersede any contrary rules adopted by agencies subject to this Article except to the extent required by federal law or State statute. The Chief Administrative Law Judge may adopt such additional rules as necessary to carry out the powers and duties of the Office of Administrative Hearings.

(k) The Chief Administrative Law Judge must:

(1) annually collect information on administrative law and procedure in Illinois and must study administrative law and procedure for the purpose of improving the fairness, efficiency, and uniformity of administrative adjudicatory proceedings in Illinois;

(2) monitor the quality and cost of State administrative hearings; and

(3) annually report his or her findings and recommendations to the Governor and to the General Assembly no later than March 15 of each year.

(5 ILCS 100/12-30 new)

Sec. 12-30. Proceedings. Beginning on January 1, 2007, an administrative law judge of the Office shall preside over any administrative hearing of any agency subject to this Article, except that an administrative hearing in a contested case commenced before January 1, 2007 and pending before an administrative law judge not transferred to the Office of Administrative Hearings by operation of Section 12-40 of this Article shall not be heard by an administrative law judge of the Office without the agreement of the parties.

(5 ILCS 100/12-35 new)

Sec. 12-35. Administrative Hearing Procedures.

(a) Time and place of hearing. The Office must consult the agency and determine the place and the time of commencement of the administrative hearing.

(b) Powers of administrative law judge. The administrative law judge presides at the administrative hearing and may:

(1) administer oaths and affirmations;

(2) rule on offers of proof and receive relevant evidence;

(3) regulate the schedule and the course of the hearing;

(4) dispose of procedural requests or similar matters;

(5) sign and issue subpoenas in the name of the agency requiring attendance and giving of testimony by witnesses and the production of books, papers, and other documentary evidence;

(6) exercise any other powers relating to the conduct of the administrative hearing that are lawfully delegated to him or her by the agency or by the examining, advisory, or disciplinary board. Whenever, after an agency head or an examining, advisory, or disciplinary board has commenced hearing a case with an administrative law judge presiding, a quorum no longer exists, the administrate law judge who is presiding must complete the hearing as if sitting alone and must render a proposed decision in accordance with subsection (e) of this Section; and

(7) perform other necessary and appropriate acts in the performance of his or her duties.

(c) Disqualifications.

(1) Administrative Law Judges shall be assigned to hearings in accordance with the procedures set forth by the Chief Administrative Law Judge. No agency may select any individual administrative law judge for any proceeding or reject any individual administrative law judge. In cases where the agency is a party to the hearing, it shall have all rights and privileges and be subject to the same limitations as all other parties to the hearing.

(2) An administrative law judge of the Office must voluntarily disqualify himself or herself and withdraw from any case for bias, prejudice, interest, or any other cause for which, under the laws of this State, a State court judge is disqualified from hearing a particular case. An administrative law judge should perform the duties of the Office impartially and diligently.

(3) Any party may petition for the disqualification of any administrative law judge by filing an affidavit stating with particularity the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded. The affidavit must be filed before the taking of evidence or, if evidence has already been taken, promptly upon discovering facts establishing grounds for disqualification.

(4) The administrative law judge whose disqualification is requested shall determine whether to grant the petition, stating facts and reasons for the determination.

(5) If an administrative law judge becomes unavailable as a result of recusal or any other reasons, the Chief Administrative Law Judge must assign another administrative law judge to preside at the administrative hearing.

(d) Ex parte communications. Except in disposition of matters that are authorized by law to be disposed of on an ex parte basis, no administrative law judge of the Office may, after notice of an administrative hearing in a contested case, communicate, directly or indirectly, in connection with any issue of fact, with any person or party, or in connection with any other issue with any party or his or her representative, without notice and opportunity for all parties to participate. An administrative law judge, however, may communicate with other employees of the Office. No member of the Office may communicate regarding pending matters to any member of an agency or of an examining, advisory, or disciplinary board if the agency or board is hearing the case with the administrative law judge. An administrative law judge may have the aid and advice of one or more assistants.

(e) Proposed decisions. When a majority of the members of an agency or of an examining, advisory, or disciplinary board has not heard a case with the administrative law judge, any proposed decision prepared by an administrative law judge of the Office is subject to this subsection (e) and Section 10-45 of this Act.

(1) When an administrative law judge hears a case alone, he or she must prepare a decision. The administrative law judge must submit the decision to the agency or, in the case of proceedings that an examining, advisory, or disciplinary board is authorized by an Act to hear and make a recommended decision, to the examining, advisory, or disciplinary board.

(2) When an administrative law judge hears a case with an agency head or with an examining, advisory, or disciplinary board, the administrative law judge must be present during the consideration of the case and must, if requested by the agency or by the board, prepare a proposed decision and submit it to the agency or board.

(3) In reviewing a proposed decision submitted by an administrative law judge of the Office, an agency head or an examining, advisory, or disciplinary board is not bound by the proposed decision and may adopt all, some, or none of the proposed decision as its recommended decision. If the agency head or examining, advisory, or disciplinary board does not adopt the proposed decision in its entirety, it must either (i) recommend a decision in the case based upon the record, including transcript, or (ii) remand the case to the same administrative law judge to take additional evidence.

(4) If a case has been remanded to an administrative law judge to take additional evidence or to include more detailed findings of fact or conclusions of law, the administrative law judge must prepare a proposed decision upon the additional evidence and upon the transcript and other papers that are part of the record of the prior hearing and must submit the proposed decision to the agency or to the examining, advisory, or disciplinary board. If the administrative law judge who heard the case originally is unavailable to take the additional evidence, by reason of illness or other disability or because he or she is no longer employed by the Office, the Chief Administrative Law Judge must assign a different administrative law judge to take the additional evidence.

(5 ILCS 100/12-40 new)

Sec. 12-40. Transition.

(a) The Governor must appoint a Chief Administrative Law Judge to take office on July 1, 2006.

(b) No later than July 1, 2006, each agency must provide to the Chief Administrative Law Judge all relevant information concerning hearings, number of hearings, personnel used as hearing officers and support staff, and actual expenditures for contracted hearing officer services, equipment, and travel.

(c) All full-time administrative law judges used principally to preside over administrative hearings conducted by an agency subject to the provisions of this Act for at least one year before July 1, 2006 must be administratively transferred to the Office no later than January 1, 2007.

(d) All full-time employees who have principally served as support staff of those employees transferred under subsection (c) of this Section must be administratively transferred to the Office no later than January 1, 2007.

(e) All equipment or other tangible property, in possession of agencies, used or held principally by personnel transferred under this Section must be transferred to the Office not later than January 1, 2007, unless the head of the agency and the Chief Administrative Law Judge determine that the equipment or property will be more efficiently used by the agency if not transferred.

Section 10. The Personnel Code is amended by changing Section 4c as follows:

(20 ILCS 415/4c) (from Ch. 127, par. 63b104c)

Sec. 4c. General exemptions. The following positions in State service shall be exempt from jurisdictions A, B, and C, unless the jurisdictions shall be extended as provided in this Act:

(1) All officers elected by the people.

(2) All positions under the Lieutenant Governor, Secretary of State, State Treasurer, State Comptroller, State Board of Education, Clerk of the Supreme Court, and Attorney General.

(3) Judges, and officers and employees of the courts, and notaries public.

(4) All officers and employees of the Illinois General Assembly, all employees of legislative commissions, all officers and employees of the Illinois Legislative Reference Bureau, the Legislative Research Unit, and the Legislative Printing Unit.

(5) All positions in the Illinois National Guard and Illinois State Guard, paid from federal funds or positions in the State Military Service filled by enlistment and paid from State funds.

(6) All employees of the Governor at the executive mansion and on his immediate personal staff.

(7) Directors of Departments, the Adjutant General, the Assistant Adjutant General, the Director of the Illinois Emergency Management Agency, members of boards and commissions, and all other positions appointed by the Governor by and with the consent of the Senate.

(8) The presidents, other principal administrative officers, and teaching, research and extension faculties of Chicago State University, Eastern Illinois University, Governors State University, Illinois State University, Northeastern Illinois University, Northern Illinois University, Western Illinois University, the Illinois Community College Board, Southern Illinois University, Illinois Board of Higher Education, University of Illinois, State Universities Civil Service System, University Retirement System of Illinois, and the administrative officers and scientific and technical staff of the Illinois State Museum.

(9) All other employees except the presidents, other principal administrative officers, and teaching, research and extension faculties of the universities under the jurisdiction of the Board of Regents and the colleges and universities under the jurisdiction of the Board of Governors of State Colleges and Universities, Illinois Community College Board, Southern Illinois University, Illinois Board of Higher Education, Board of Governors of State Colleges and Universities, the Board of Regents, University of Illinois, State Universities Civil Service System, University Retirement System of Illinois, so long as these are subject to the provisions of the State Universities Civil Service Act.

(10) The State Police so long as they are subject to the merit provisions of the State Police Act.

(11) The scientific staff of the State Scientific Surveys and the Waste Management and Research Center.

(12) The technical and engineering staffs of the Department of Transportation, the Department of Nuclear Safety, the Pollution Control Board, and the Illinois Commerce Commission, and the technical and engineering staff providing architectural and engineering services in the Department of Central Management Services.

(13) All employees of the Illinois State Toll Highway Authority.

(14) The Secretary of the Illinois Workers' Compensation Commission.

(15) All persons who are appointed or employed by the Director of Insurance under authority of Section 202 of the Illinois Insurance Code to assist the Director of Insurance in discharging his responsibilities relating to the rehabilitation, liquidation, conservation, and dissolution of companies that are subject to the jurisdiction of the Illinois Insurance Code.

(16) All employees of the St. Louis Metropolitan Area Airport Authority.

(17) All investment officers employed by the Illinois State Board of Investment.

(18) Employees of the Illinois Young Adult Conservation Corps program, administered by the Illinois Department of Natural Resources, authorized grantee under Title VIII of the Comprehensive Employment and Training Act of 1973, 29 USC 993.

(19) Seasonal employees of the Department of Agriculture for the operation of the Illinois State Fair and the DuQuoin State Fair, no one person receiving more than 29 days of such employment in any calendar year.

(20) All "temporary" employees hired under the Department of Natural Resources' Illinois Conservation Service, a youth employment program that hires young people to work in State parks for a period of one year or less.

(21) All hearing officers of the Human Rights Commission.

(22) All employees of the Illinois Mathematics and Science Academy.

(23) All employees of the Kankakee River Valley Area Airport Authority.

(24) The commissioners and employees of the Executive Ethics Commission.

(25) The Executive Inspectors General, including special Executive Inspectors General, and employees of each Office of an Executive Inspector General.

(26) The commissioners and employees of the Legislative Ethics Commission.

(27) The Legislative Inspector General, including special Legislative Inspectors General, and employees of the Office of the Legislative Inspector General.

(28) The Auditor General's Inspector General and employees of the Office of the Auditor General's Inspector General.

(29) All employees of the Office of Administrative Hearings.

(Source: P.A. 93-617, eff. 12-9-03; 93-721, eff. 1-1-05; revised 10-14-04.)

Section 99. Effective date. This Act takes effect upon becoming law.