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Lawrence v. North Dakota Workers Compensation Bureau3/23/2000
natyk v. Mills, 523 N.W.2d 537, 540 (N.D. 1994); Froysland v. North Dakota Workers Comp. Bur., 432 N.W.2d 883, 889 (N.D. 1988). See N.D.C.C. § 1-02-38(1).
[ ] Section 65-01-16(8), N.D.C.C., says when "reviewing recommended findings, conclusions, and orders, the bureau may consult with its legal counsel representing it in the proceeding." Nothing in that language authorizes those consultations to be ex parte, and N.D.C.C. § 28-32-12.1 generally prohibits ex parte communications between an agency and persons allowed to participate in the proceedings. The introductory language of N.D.C.C. § 65-01-16 says " he following procedures must be followed in claims for benefits, notwithstanding any provisions to the contrary in chapter 28-32." The language in N.D.C.C. § 65-01-16(8) authorizing consultations when reviewing a pending ALJ recommendation is not contrary to the provisions in chapter 28-32 prohibiting ex parte communications. Under our rules of construction, we harmonize those provisions to allow the Bureau to consult with its outside legal counsel in reviewing a pending ALJ recommendation as long as those communications are not ex parte. If N.D.C.C. § 65-01-16(8) is construed to permit ex parte contacts between the Bureau and its outside litigation counsel in these circumstances, a potential due process violation exists. See, e.g., Camero v. United States, 375 F.2d 777, 780-81 (Ct. Cl. 1967) and other authorities cited in Scott, 1998 ND 221, 12, 587 N.W.2d 153. We construe statutes to avoid constitutional infirmities. Mills, 523 N.W.2d at 540; Froysland, 432 N.W.2d at 889. We harmonize N.D.C.C. § 65-01-16(8) with N.D.C.C. ch. 28-32 to allow the Bureau to consult with its outside litigation counsel when reviewing a pending ALJ recommendation, but to preclude those consultations from being ex parte. We conclude the Bureau's ex parte contacts with its outside legal counsel about the pending ALJ recommendation violated N.D.C.C. § 65-01-16(8) and N.D.C.C. ch. 28-32.
IV.
[ ] Having concluded the Bureau's ex parte contacts violated N.D.C.C. § 65-01-16(8) and N.D.C.C. ch. 28-32, we consider the appropriate remedy for this case. In Scott, 1998 ND 221, 19, 587 N.W.2d 153, a majority of this Court recognized N.D.C.C. § 28-32-12.1(6), now codified at N.D.C.C. § 28-32-12.1(7), ordinarily requires disqualification of an agency head or hearing officer who receives improper ex parte communications, but that remedy was inappropriate there because the communications came to light after the final agency decision had been issued and the cat was out of the bag. We decided the Bureau's ex parte contacts in that case demonstrated a systemic disregard of the law because the record established widespread institutional noncompliance with the requirements of law, rather than a single miscue or improper act, and we concluded the proper remedy was reinstatement of the ALJ's recommended decision. Scott, at 20-22.
[ ] Here, the district court decided the Bureau's ex parte contacts with outside litigation counsel established a systemic disregard of the law and ordered reinstatement of the ALJ's decision. The Bureau primarily relies on legislative history for N.D.C.C. § 65-01-16(8) to support its position that these ex parte contacts are authorized by statute. Although we have harmonized N.D.C.C. § 65-01-16(8) and N.D.C.C. ch. 28-32 in a manner contrary to the Bureau's position, under these circumstances, we are not persuaded the Bureau's actions establish a systemic disregard of the law warranting reinstatement of the ALJ's recommended decision.
[ ] Lawrence nevertheless argues he is entitled to reinstatement of disability benefits. We conclude, however, a remand for a rehearing is
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