Opinion No. 74-178 (1974) Ag

REAL ESTATE COMMISSION — — HEARING EXAMINER The person(s) employed as hearing examiner(s) may represent the Commission in court proceedings, except those court proceedings arising out of a matter or hearing in which this particular person was hearing examiner. This is to acknowledge receipt of your letter wherein you refer to Section 209 of House Bill 1565. "Question: Does the language of Section 209 of subject House Bill 1565 authorize a hearing examiner employed by the Commission to represent the Commission in a court proceeding?" Section 209 of Enrolled House Bill 1565 states, in part: " . . . The Commission may designate and employ a hearing examiner or examiners who shall have the power and authority to conduct such hearings in the name of the Commission at any time and place subject to provisions of this section and any applicable rules, regulations or orders of the Commission. No person shall serve as a hearing examiner in any proceeding in which any party to the proceeding is, or at any time has been, a client of the hearing examiner or of any firm, partnership or corporation with which the hearing examiner is, or at any time has been, associated and, provided further, that no person who acts as a hearing examiner shall act as attorney for the Commission in any court proceeding arising out of any hearing in which he acted as hearing examiner . . . ." As stated above, this section provides for the Commission to hire hearing examiners. The above statute sets out some restrictions on a person employed as a hearing examiner, in that: "(1) The person cannot be employed as a hearing examiner if a party to the proceeding is or has ever been a client of the prospective hearing examiner, or a client of any firm, partnership or corporation with which the hearing examiner is or has been associated. (2) A person who acts as hearing examiner cannot later act as attorney for the Commission in any court proceeding which results from a hearing wherein the person acted as hearing examiner. Where this situation would usually arise is an appeal to District Court from a decision of the Real Estate Commission pursuant to a hearing involving the license of a real estate broker or salesman. With reference to the second restriction, where the hearing examiner cannot later represent the Commission as attorney in a court proceeding arising out of a hearing wherein he was a hearing examiner, it is obvious that it was the legislative intent that the converse of this restriction would apply; that the person(s) employed as hearing examiner(s) could represent the Commission in any court proceeding arising out of any matter or hearing, if this person did not act as hearing examiner in that particular matter or hearing. For example, the Real Estate Commission could hire A, B and C as hearing examiners. If A was hearing examiner at the hearing before the Board, he could not represent the Board, as attorney, in any court proceeding arising out of that particular hearing. However, B or C could so represent the Board in that court proceeding. It is apparent that such state employees should be available for other work when not acting in a hearing examiner capacity. It is therefore the opinion of the Attorney General that your question be answered as follows: The person(s) employed as hearing examiner(s) may represent the Commission in court proceedings, except those court proceedings arising out of a matter or hearing in which this particular person was hearing examiner. (Todd Markum)