James H. Hayes has been employed at New Lisbon School for approximately 13 years. On April 21, 1979, he was demoted from his position as Assistant Supervisor of Residential Living as a result of charges of neglect of duty and inefficiency. Hayes allegedly failed to follow established administrative procedures when an elderly resident of the school was reported missing from his cottage during a blizzard.
Hayes appealed his demotion and hearings were scheduled before an administrative law judge of the Office of Administrative Law (hereafter the "O.A.L."). At plaintiff's request a subpoena duces tecum was issued by the O.A.L. for the second scheduled hearing and served upon Paul Gulli, Chief Personnel Officer of New Lisbon State School (defendant). This subpoena required that defendant appear and produce school records pertaining to one of the residents of the school. Allegedly, these records include certain reports which are relevant to the incident in question, but are unrelated to that resident's treatment. Defendant has refused to comply.
On May 12, 1980 the administrative law judge, after considering the various objections to the subpoena, confirmed its scope and effect as valid and ordered defendant to comply; defendant, however, continues to decline to produce the records.
On May 21, 1980 an order to show cause was signed by this court requiring defendant to show cause why the subpoena should not be enforced.*fn1
The threshold question is whether the O.A.L., or its administrative law judges, has any power to issue a subpoena.*fn2 Such power may be either derivative, i.e. , flowing from the statutory authorization to the Civil Service Commission (the generating agency), so as to be restricted by the statutory procedures pertaining thereto (see N.J.S.A. 11:1-12, 13), or, as urged by plaintiff, independent, i.e. , a necessarily implied power inherent in the independent quasi -judicial function of an administrative law judge, despite the absence of an express grant in N.J.S.A. 52:14F-1 et seq.*fn3
The legislative purpose in establishing the O.A.L. was recognized by Justice Handler in Hackensack v. Winner , 82 N.J. 1 (1980):
The act creates an independent Office of Administrative Law and provides for the assignment of independent hearing officers, denominated "administrative law judges," to hear and make recommended determinations in contested administrative agency cases. N.J.S.A. 52:14F-5, -6, -8. The salutary purposes of the statute "is to improve the quality of justice with respect to administrative hearings . . . [,] to eliminate conflict of interests for hearing officers, promote due process, expedite the just conclusion of contested cases and generally improve the quality of administrative justice." Statement of Purpose, L. 1978,
c. 67. The administrative law judges will be independent of the administrative agency whose jurisdiction is involved. [at 36-37]
Towards this clearly enunciated goal of improvement of administrative justice, the Legislature has given the Director of the O.A.L. the power to:
e. Develop uniform standards, rules of evidence, and procedures, including but not limited to standards for determining whether a summary or plenary hearing should be held to regulate the conduct of contested causes and the rendering of administrative adjudications;
f. Promulgate and enforce such rules for the prompt implementation and coordinated administration of the Administrative Procedure Act P.L. 1968, C. 410 (C. 52:14B-1 et seq.) as may be required or appropriate;
g. Administer and supervise the procedures relating to the conduct of contested case, and the making of administrative adjudications as defined by Section 2 of P.L. 1968, C. 410 (C.52:14B-2); . . . [ N.J.S.A. 52:14F-5 e, f, g]
The Legislature thus intended the O.A.L. to provide a new system of administrative adjudication, promoting justice through uniformity and independence.
As presented to this court, there is no dispute as to whether the O.A.L. can issue subpoenas under the statutory grant to the agency involved in the contested case before it; only the method of enforcement is contested. The Civil Service Commission is clearly granted subpoena power by N.J.S.A. 11:1-12, 13, and all parties suggest that the O.A.L. can exercise the power of the Commission.
Despite this position, the parties' dispute as to the proper method of enforcement of the subpoena requires this court to examine the source of the O.A.L.'s power, if any, to issue subpoenas. Although defendant urges that the court need not discuss this issue, the source of the power can itself determine the method of enforcement. Since the statutes involved do not expressly grant such power to the O.A.L., one view is that the O.A.L. may not exercise any independent subpoena power, but rather must follow the procedures required of the individual case-generating agencies. Here, the Civil Service Commission itself has been given the subpoena power, and no administrative delegation of that power to either administrative law judges or
their predecessors (hearing officers) has been shown.*fn4 Therefore, it could be argued that subpoenas can only originate from the Commission itself, and would be enforceable only by certification by its ...