State Government

General Regulations for State Agencies

CHAPTER 101. Administrative Procedures

Subchapter III. Case Decisions

§ 10121. Application of subchapter.

This subchapter shall apply to all agency case decisions except:

(1) Decisions relating to the assessment of taxes or tax penalties made by the Tax Appeals Board; or

(2) Temporary restraining orders and similar orders authorized by law to be issued summarily.

60 Del. Laws, c. 585, §  162 Del. Laws, c. 301, §  2

§ 10122. Notice of proceedings.

Whenever an agency proposes to proceed for a case decision, it shall give 20 days’ prior notice to all parties as follows:

(1) The notice shall describe the subject matter of the proceedings;

(2) The notice shall inform the parties of the opportunity, if permitted by law, to elect to proceed by informal fact-finding and of the date by which such election must be made;

(3) The notice shall give the date, time and place the formal hearing will be held if informal fact-finding is not elected;

(4) The notice shall cite the law or regulation giving the agency authority to act;

(5) The notice shall inform the party of the right to present evidence, to be represented by counsel and to appear personally or by other representative; and

(6) The notice shall inform the parties of the agency’s obligation to reach its decision based upon the evidence received.

60 Del. Laws, c. 585, §  162 Del. Laws, c. 301, §  270 Del. Laws, c. 186, §  1

§ 10123. Informal fact-finding.

Where a formal hearing is not required by law and where the parties agree in advance to proceed in such manner, the agency shall acquire the information upon which it bases its decision by means of informal conference or consultation among the parties as follows:

(1) The agency shall conduct the conference itself or may designate a subordinate to do so;

(2) The parties may appear in person and by counsel; and

(3) The parties may submit any relevant factual data, documents, testimony and argument. Only such evidence and argument presented at such conference or presented to the agency and opposing parties before the conference may be taken into consideration by the agency in making its findings and rendering its decision.

60 Del. Laws, c. 585, §  162 Del. Laws, c. 301, §  2

§ 10124. Public hearings; notice.

When required by law or when the parties do not consent to informal proceedings, or when the matters at issue involve price fixing, rate making or similar matters of general public interest, as determined by the agency, the agency shall conduct a formal, public evidentiary hearing to which the following provisions shall apply:

(1) The notice required by § 10122 of this title shall be published in at least 2 Delaware newspapers of general circulation and shall be advertised by electronic posting on a designated State of Delaware website, approved by the Registrar of Regulations by May 1, 2013, which shall be accessible to the public; and

(2) Applicants for licenses, renewals and other rights or benefits shall not be entitled to prior notice of application requirements but shall receive notice of any proposed contest of such applications.

60 Del. Laws, c. 585, §  162 Del. Laws, c. 301, §  278 Del. Laws, c. 288, §  7

§ 10125. Conduct of public hearings; burden of proof; record.

(a) The hearing may be conducted by the agency or by a subordinate designated for that purpose.

(b) In connection with such hearings, the agency or its designated subordinate may be empowered to:

(1) Issue subpoenas for witnesses and other sources of evidence, either on the agency’s initiative or at the request of any party;

(2) Administer oaths to witnesses;

(3) Exclude plainly irrelevant, immaterial, insubstantial, cumulative and privileged evidence;

(4) Limit unduly repetitive proof, rebuttal and cross-examination;

(5) Cause interrogatories to issue and depositions to be taken; or

(6) Hold prehearing conferences for the settlement or simplification of issues by consent, for the disposal of procedural requests or disputes and to regulate and expedite the course of the hearing.

(c) The burden of proof shall always be upon the applicant or proponent.

(d) A record from which a verbatim transcript can be prepared shall be made of all hearings in all contested cases. Transcripts shall be made at the request and expense of any party.

60 Del. Laws, c. 585, §  162 Del. Laws, c. 301, §  2

§ 10126. Proposed orders.

(a) Whenever a subordinate presides over an informal conference or a formal hearing, the subordinate shall prepare a proposed order for the consideration of the agency which shall include:

(1) A brief summary of the evidence and recommended findings of fact based upon the evidence;

(2) Recommended conclusions of law; and

(3) Recommended decision.

(b) When the proposed order is submitted to the agency, a copy shall be delivered to each of the other parties who shall have 20 days to submit in writing to the agency exceptions, comments and arguments respecting the proposed order.

60 Del. Laws, c. 585, §  162 Del. Laws, c. 301, §  270 Del. Laws, c. 186, §  1

§ 10127. Record.

With respect to each case, all notices, correspondence between the agency and the parties, all exhibits, documents and testimony admitted into evidence and all recommended orders, summaries of evidence and findings and all interlocutory and final orders of the agency shall be included in the agency’s record of the case and shall be retained by the agency.

60 Del. Laws, c. 585, §  162 Del. Laws, c. 301, §  2

§ 10128. Decision; final order.

(a) The agency shall make its decision based upon the entire record of the case and upon the summaries and recommendations of its subordinates.

(b) Every case decision of any agency shall be incorporated in a final order which shall include, where appropriate:

(1) A brief summary of the evidence;

(2) Findings of fact based upon the evidence;

(3) Conclusions of law;

(4) Any other conclusions required by law of the agency; and

(5) A concise statement of the agency’s determination or action on the case.

(c) Every final order shall be authenticated by the signatures of at least a quorum of all agency members, unless otherwise provided by law.

(d) Every final order shall immediately be mailed or delivered to each party and each other person requesting it.

(e) Every final order may be amended or modified by the same procedure used for the initial adoption of the order.

(f) When any professional licensing board or commission governed by Title 23, 24, or 28, and listed in § 10161(a) of this title, orders, at the conclusion of a hearing, that a license shall be revoked or suspended, the revocation or suspension shall be effective immediately. A written order, pursuant to this section, shall be served no later than 30 days after the hearing date.

(g) When any professional licensing board or commission governed by Title 23, 24, or 28, and listed in § 10161(a) of this title reaches its conclusions of law and determines an appropriate disciplinary action, if any, the Board or Commission shall issue a written decision and order in accordance with this section. However, notwithstanding the provisions of subsection (c) of this section, the decision and order may be issued over the signature of only the President or other officer of the Board.

60 Del. Laws, c. 585, §  162 Del. Laws, c. 301, §  277 Del. Laws, c. 369, §  178 Del. Laws, c. 130, §  1

§ 10129. Ex parte consultations.

No member or employee of an agency assigned to participate in any way in the rendering of a case decision shall discuss or communicate, directly or indirectly, respecting any issue of fact or law with any person or party, except upon notice to and opportunity for all parties to participate. This section shall not apply to communications required for the disposition of ex parte matters authorized by law or to communications by and among members of an agency, the agency’s staff and the agency’s attorney.

60 Del. Laws, c. 585, §  162 Del. Laws, c. 301, §  2