Printable Format77-526. Orders, initial and final; exception for state corporation commission. (a) If the presiding officer is the agency head or designated in accordance with subsection (g) of K.S.A. 77-514, and amendments thereto, the presiding officer shall render a final order.
(b) If the presiding officer is neither the agency head nor designated in accordance with subsection (g) of K.S.A. 77-514, and amendments thereto, the presiding officer shall render an initial order, which becomes a final order unless reviewed in accordance with K.S.A. 77-527 and amendments thereto.
(c) A final order or initial order shall include, separately stated, findings of fact, conclusions of law and policy reasons for the decision if it is an exercise of the state agency's discretion, for all aspects of the order, including the remedy prescribed and, if applicable, the action taken on a petition for stay of effectiveness. Findings of fact, if set forth in language that is no more than mere repetition or paraphrase of the relevant provision of law, shall be accompanied by a concise and explicit statement of the underlying facts of record to support the findings. The order shall also include a statement of the available procedures and time limits for seeking reconsideration, administrative review or other administrative relief. An initial order shall include a statement of any circumstances under which the initial order, without further notice, may become a final order. If the presiding officer has been designated in accordance with subsection (g) of K.S.A. 77-514, and amendments thereto, the final order shall so state. Any final order, for which a petition for reconsideration is not a prerequisite for seeking judicial review, and any initial order, for which further administrative review is not available, shall state the agency officer to receive service of a petition for judicial review on behalf of the agency.
(d) Findings of fact shall be based exclusively upon the evidence of record in the adjudicative proceeding and on matters officially noticed in that proceeding.
(e) If a substitute presiding officer is appointed pursuant to K.S.A. 77-514 and amendments thereto, the substitute presiding officer shall use any existing record and may conduct any further proceedings appropriate in the interests of justice.
(f) The presiding officer may allow the parties a designated amount of time after conclusion of the hearing for the submission of proposed findings.
(g) A final order or initial order pursuant to this section shall be rendered in writing and served within 30 days after conclusion of the hearing or after submission of proposed findings in accordance with subsection (f) unless this period is waived or extended with the written consent of all parties or for good cause shown. If extended for good cause, such good cause shall be set forth in writing on or before expiration of the 30 days.
(h) The presiding officer shall cause copies of the order to be served on each party and, if the order is an initial order, on the agency head in the manner prescribed by K.S.A. 77-531 and amendments thereto.
(i) Notwithstanding the other provisions of this section, if the presiding officer in a hearing before the state corporation commission is not the agency head, the presiding officer shall not render an initial order but shall make written findings and recommendations to the commission. The commission shall render and serve a final order within 60 days after conclusion of the hearing or after submission of proposed findings in accordance with subsection (f) unless this period is waived or extended with the written consent of all parties or for good cause shown. If extended for good cause, such good cause shall be set forth in writing on or before expiration of the 60 days.
History: L. 1984, ch. 313, § 26; L. 1988, ch. 356, § 13; L. 1995, ch. 175, § 5; July 1.
Law Review and Bar Journal References:
"The New Kansas Administrative Procedure and Judicial Review Acts," David L. Ryan, 54 J.K.B.A. 53, 60 (1985).
CASE ANNOTATIONS
1. Failure to render final or initial order does not deprive agency of jurisdiction. Expert Environmental Control, Inc. v. Walker, 13 Kan. App. 2d 56, 58, 761 P.2d 320 (1988).
2. Cited in review of Kansas water authority's water transfer order on statutory, jurisdictional and administrative procedure grounds. Water District No. 1 v. Kansas Water Authority, 19 Kan. App. 2d 236, 241, 245, 866 P.2d 1076 (1994).
3. Whether contract provision was mandatory subject of bargaining between employer and state employees examined. State Dept. of Administration v. Public Employees Relations Bd., 257 Kan. 275, 280, 894 P.2d 777 (1995).
4. Civil service board may affirm, modify, reverse or order any other action the board deems appropriate in personnel appeal. Kansas Dept. of Transportation v. Humphreys, 266 Kan. 179, 182, 967 P.2d 759 (1998).
5. No evidence of prejudice in administrative order being issued five days after 30-day time limit. DeBerry v. Kansas State Bd. of Accountancy, 34 Kan. App. 2d 813, 124 P.3d 1067 (2005).
6. Policy reflected in statute of equal importance in context of inmate administrative proceedings. McMillan v. McKune, 35 Kan. App. 2d 654, 659, 135 P.3d 1258 (2006).
7. Failure to serve in accordance with K.S.A. 77-615 held to deprive district and appellate court of jurisdiction. Price v. Kansas Dept. of SRS, 39 Kan. App. 2d 86, 88, 176 P.3d 1002 (2008).
8. Cited; appeal to secretary of revenue essential to exhaustion of administrative remedies. Blomgren v. Kansas Dept. of Revenue, 40 Kan. App. 2d 208, 213, 191 P.3d 320 (2008).