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77-527. Review of initial order; exceptions to reviewability. (a) The agency head, upon its own motion may, and upon petition by any party or when required by law shall, review an initial order, except to the extent that:

(1) A provision of law precludes or limits state agency review of the initial order; or

(2) the agency head (A) determines to review some but not all issues, or not to exercise any review, (B) delegates its authority to review the initial order to one or more persons, unless such delegation is expressly prohibited by law, or (C) authorizes one or more persons to review the initial order, subject to further review by the agency head.

(b) A petition for review of an initial order must be filed with the agency head, or with any person designated for this purpose by rule and regulation of the state agency, within 15 days after service of the initial order. If the agency head on its own motion decides to review an initial order, the agency head shall give written notice of its intention to review the initial order within 15 days after its service. If the agency head determines not to review an initial order in response to a petition for review, the agency head shall, within 20 days after filing of the petition for review, serve on each party an order stating that review will not be exercised.

(c) The petition for review shall state its basis. If the agency head on its own motion gives notice of its intent to review an initial order, the agency head shall identify the issues that it intends to review.

(d) Subject to K.S.A. 77-621, and amendments thereto, in reviewing an initial order, the agency head or designee shall exercise all the decision-making power that the agency head or designee would have had to render a final order had the agency head or designee presided over the hearing, except to the extent that the issues subject to review are limited by a provision of law or by the agency head or designee upon notice to all parties. In reviewing findings of fact in initial orders by presiding officers, the agency head shall give due regard to the presiding officer's opportunity to observe the witnesses and to determine the credibility of witnesses. The agency head shall consider the agency record or such portions of it as have been designated by the parties.

(e) The agency head or designee shall afford each party an opportunity to present briefs and may afford each party an opportunity to present oral argument.

(f) The agency head or designee shall render a final order disposing of the proceeding or remand the matter for further proceedings with instructions to the person who rendered the initial order. Upon remanding a matter, the agency head or designee may order such temporary relief as is authorized and appropriate.

(g) A final order or an order remanding the matter for further proceedings shall be rendered in writing and served within 30 days after receipt of briefs and oral argument unless that period is waived or extended with the written consent of all parties or for good cause shown.

(h) A final order or an order remanding the matter for further proceedings under this section shall identify any difference between this order and the initial order and shall state the facts of record which support any difference in findings of fact, state the source of law which supports any difference in legal conclusions, and state the policy reasons which support any difference in the exercise of discretion. A final order under this section shall include, or incorporate by express reference to the initial order, all the matters required by subsection (c) of K.S.A. 77-526, and amendments thereto.

(i) The agency head shall cause copies of the final order or order remanding the matter for further proceedings to be served on each party in the manner prescribed by K.S.A. 77-531, and amendments thereto.

(j) Unless a petition for reconsideration is a prerequisite for seeking judicial review, a final order under this section shall state the agency officer to receive service of a petition for judicial review on behalf of the agency.

History: L. 1984, ch. 313, § 27; L. 1988, ch. 356, § 14; L. 1995, ch. 175, § 6; L. 1997, ch. 182, § 94; L. 2009, ch. 109, § 13; July 1.

Law Review and Bar Journal References:

"Loss of Water Rights for Non-Use," John C. Peck and Constance Crittenden Owen, 43 K.L.R. 801, 804 (1995).

"A Species Unto Themselves: Professional Disciplinary Actions," Mary Feighny and Camille Nohe, 71 J.K.B.A. No. 6, 29 (2002).

Attorney General's Opinions:

Kansas dental board member who testifies as an expert witness in a board disciplinary hearing may be considered a governmental employee covered by the Kansas tort claims act. 2011-14.

CASE ANNOTATIONS

1. School board's refusal to negotiate evaluation procedures for implementing new teacher evaluation criteria determined a prohibited practice under K.S.A. 72-5430(b)(5). U.S.D. No. 314 v. Kansas Dept. of Human Resources, 18 Kan. App. 2d 596, 598, 856 P.2d 1343 (1993).

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, 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. Trial court ruling that agency secretary acted arbitrarily by disregarding presiding officer's witness credibility determination reversed. Tire Disposal Facilitators, Inc. v. State ex rel. Harder, 22 Kan. App. 2d 491, 492, 919 P.2d 362 (1996).

5. Failure to exhaust administrative remedies, as specified by statute, results in no jurisdiction by trial or appellate courts. Turner & Boisseau, Chtd. v. Kansas Bd. of Healing Arts, 26 Kan. App. 2d 36, 39, 978 P.2d 288 (1999).

6. The secretary of SRS is the designated representative for service upon that agency. Price v. Kansas Dept. of SRS, 39 Kan. App. 2d 86, 87, 88, 176 P.3d 1002 (2008).

7. Cited; appellant failed to exhaust administrative remedies before seeking district court action; appeal dismissed. Friedman v. Kansas State Board of Healing Arts, 287 Kan. 749, 750, 199 P.3d 781 (2009).

8. Court discusses and applies principles regarding independent contractor versus employee status involving cab drivers. Hill v. Kansas Dept. of Labor, 42 Kan. App. 2d 215, 210 P.3d 647 (2009).


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