Jаnet BASHUS, Appellant, v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES and Burleigh County Social Service Board, Appellees.
Civ. No. 940033.
Supreme Court of North Dakota.
July 18, 1994.
519 N.W.2d 296
Carmen G. Miller, Asst. Atty. Gen., Bismarck, for appellees.
SANDSTROM, Justice.
Janet Bashus appeals from a district court judgment dismissing her appeal from an April 21, 1993 “decision” of the Departmеnt of Human Services. We reverse the dismissal and remand for the Department to file the record of the proceedings before it.
I
In August 1991, Bashus’ eight-year-old daughter, Ashley, became ill with what was eventually diagnosed as a malignant brain tumor. Bashus quit her job and began full-time care for Ashley and her three other children. Bashus applied for and received Aid to Families with Dependent Children (AFDC) benefits and food stamps.
Bashus also received charitable contributions in a local bank account to help defray Ashley‘s medical expenses. The exact amount of the charitable contributions is not clear; however, the record on appeal includеs an August 3, 1992 AFDC “overpayment determination notice” from Burleigh County Social Services, which said:
“IT HAS BEEN DETERMINED THAT YOU HAVE RECEIVED AN OVERPAYMENT IN YOUR AFDC GRANT(S) DURING THE PERIOD OF DECEMBER THRU JUNE 1992 IN THE AMOUNT OF $3,167.00. THE OVERPAYMENT IS A RESULT OF YOU HAVING A BANK ACCOUNT WITH OVER $2000 IN IT AND NOT REPORTING IT TO OUR OFFICE. “YOUR AFDC GRANT(S) WILL BE REDUCED EACH MONTH UNTIL THIS OVERPAYMENT IS RECOVERED.”
The next document in the record on appeal is a “Findings & Decision” issued by the Department on December 9, 1992, which stated Bashus had signed a “waiver of hearing” and had admitted an intentional violation of the food stamp program by making false or misleading statements about her financial circumstances. The Department determined Bashus was ineligible for food stamps for six months. See
Although the record on appeal does not include any other intervening documents, on April 21, 1993, the executive director of the Department wrote Bashus a lettеr which said:
“Thank you for your recent letter to me regarding your AFDC and Food Stamp case. I contacted the Department‘s Appeal Supervisor and instructed her to meet with program staff in reviewing your case.
“The results of that review are as follows:
“1. The food stamp overpayment notice was issued in error. Your household was categorically eligible for food stamps since Ashley was on SSI. That action will be reversed and any recoupment dollars will be returned to you.
“2. The AFDC overpayment notice will stand because you failed to report checking account assets. You claim that this was a special fund set up for Ashley‘s medical expenses, but the fund monies were used fоr the purchase of a motor vehicle.
“3. The food stamp intentional program violation decision cannot be administratively changed based upon federal regulation. You must present your argument directly to District Court concerning this issue.”
Bashus appealed to the district court from the April 21, 1993 “decision.” The Department moved to dismiss Bashus’ appeal, contending the April 21 letter was not an appealable order and she had failed to file timely appeals from the August 3, 1992 and the December 9, 1992 decisions. Bashus resisted the Department‘s motion to dismiss and requested the Department to file in the district court the record of the administrative proceedings in her case. The Department responded there was no record of administrative proceedings, because Bashus had failed to file timely appeals after the August 3 and the December 9 decisions. The district court granted the Department‘s motion to dismiss, concluding the April 21 letter was not an appealable order and Bashus had not filed timely appeals from the earlier decisions. Bashus appealed to this Court.
II
When an order of the Department is appealed to the district court and then to this Court, we review the Department‘s order and look at the record compiled before the Department. Hinschberger v. Griggs County Social Service Board, 499 N.W.2d 876, 879 (N.D.1993). Under
III
The primary issue in this case is whether the April 21 letter is appеalable.
When Bashus appealed to the district court from the April 21 letter,
“4. The agency record of the proceedings, as applicable, must consist of only the following:
“a. The complaint, answer, and other initial pleadings or documents.
“b. Notices of all proceedings.
“c. Any prehearing notices, transcripts, documents, оr orders.
“d. Any motions, pleadings, briefs, petitions, requests, and intermediate rulings.
“e. A statement of matters officially noticed.
“f. Offers of proof and objections and rulings thereon.
“g. Proposed findings, requested orders, and exceptions.
“h. The transcript of the hearing prepared for the person presiding at the hearing, including all testimony taken, and any written statements, exhibits, reports, memoranda, documents, or other information or evidence considered before final disposition of proceedings.
“i. Any recommended or proposed order, recommended or proposed findings of fact and conclusions of law, final order, final findings of fact and conclusions of law, or findings of fact and conclusions of law or orders on consideration.
“j. Any information considered pursuant to
section 28-32-07 .“k. Matters placed on the record after an ex parte communication.
“l. Any other document that the agency believes is relevant to the appeal.
“m. Any other document that is not privileged and which is a public record that the appellant requests the agency to include in the record, if relevant to the appeal.”
Under those statutes, the “record of proceedings before the agency” consists of a wide range of documents, and, contrary to the Department‘s argument, is not limited to documents presented as a result of a formal hearing. Rather, the “agency record of proceedings” may include information not presented at a formal hearing.
Here, the sparse appellate record for the proceedings before the County Social Service Board and the Department clouds the status of the administrative proceedings prior to Bashus’ appeal from the April 21 letter. In support of its motion to dismiss, the Department filed an affidavit of an administrative secretary which stated she was “familiar with the documents on file concerning Janet Bashus.” Attached to the affidavit was a copy of the August 3, 1992 AFDC “overpayment
The Department‘s “fair hearing” procedures require a dissatisfied AFDC recipient to request a fair hearing within thirty days after county agency action has resulted in the suspension, reduction, discontinuance, оr termination of assistance. N.D.A.C. §§ 75-01-03-03(1)(b) and 75-01-03-06. The “county agency or regional office must explain the right to request a fair hearing ... to every applicant at the time of the applicant‘s application for assistance, and thereafter at any time when further county action respecting aid or services is taken.” N.D.A.C. § 75-01-03-07(1). Alsо, “[w]ritten notice of the right to a fair hearing shall be included in every notification to the applicant or recipient of the granting, denial, decrease, discontinuance, suspension or increase in aid, or request for repayment, or where there is a change in a prior determination regarding aid.” N.D.A.C. § 75-01-03-07(2).
The copy of the August 3, 1992 AFDC “overpayment determination notice” in this record does not say the Burleigh County Social Service Board provided Bashus with “[w]ritten notice of the right to a fair hearing” as required by N.D.A.C. § 75-01-03-07(2).2 In addition, the administrative secretary‘s affidavit indicates the Department received a “protest” from Bashus on December 14, 1992, in response tо the August 3, 1992 AFDC “overpayment determination notice.” The “protest,” however, is not part of this record. The “[w]ritten notice of [Bashus‘] right to a fair hearing” and the “protest” are part of “the entire record of proceedings before the agency” under
Thе December 9 food stamp decision states “[t]he evidence of record in this proceeding has been considered and appraised,” and says Bashus “signed a waiver of hearing, admitting the facts described in the ‘Notice of Suspected Intentional Program Violation’ and understanding that a six month disqualification will be imposed as a result, without further hearing.” The decision further states “[t]he information provided by the county social service board has been reviewed and it is found that the acts described on the ‘Notice of Suspected Intentional Program Violation’ involved intentional misrepresentation or concealment of information considered relevant to the county social service board in evaluating the household‘s eligibility and coupon allotment.” However, the “evidence of record,” the “signed waiver of hearing,” the “‘Notice of Suspected Intentional Program Violation,‘” and the “information provided by the county social service board” may be relevant to the status of Bashus’ appeal and are part of “the entire record of proceedings before the agency.” Those documents, however, were not filed with the district court.
This record also does not include the letter from Bashus which precipitated the executive director‘s April 21, 1993 letter. The April 21 letter states the executive director received a letter from Bashus, and a “review” of her case had occurred. According to the executive director, the “results of that review” were: (1) the food stamp overpayment was issued in error and was reversed with an appropriate recoupment; (2) the AFDC overpayment notice was upheld because Bashus had failed to report checking account assets; and (3) the intentional food stamp violation could not be administratively changed be-
Although an agency‘s gratuitous response to a citizen inquiry does not constitute an appealable “final order” under
Accordingly, we reverse the dismissаl and remand for the Department to file the original or a certified copy of the “entire record of proceedings before the agency” so the status of Bashus’ appeal can be decided by the district court.
MESCHKE, LEVINE and NEUMANN, JJ., concur.
VANDE WALLE, Chief Justice, concurring in result.
Ordinarily I do not believe correspondence from an agency to a client constitutes а final order as required for an effective appeal by
The other items which are not in the rеcord become relevant only if the April 21, 1993, letter is an appealable order. I do not agree with the majority‘s attempt to “bootstrap” these items into the determination of whether or not the April 21st letter is a final order.
VANDE WALLE
Chief Justice
Notes
“(f) Waived hearings. Each State agency shall have the оption of establishing procedures to allow accused individuals to waive their rights to an administrative disqualification hearing. For State agencies which choose the option of allowing individuals to waive their rights to an administrative disqualification hearing, the procedures shall conform with the requirements outlined in this section.
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“(2) Imposition of disqualification penalties. (i) If the household member suspected of intentional Program violation signs the waiver of right to an administrative disqualification hearing and the signed waiver is received within the timeframes specified by the State agency, the household member shall be disqualified in accordance with the disqualification periods specified in paragraph (b) of this section. . . .
“(ii) No further administrative appeal procedure exists after an individual waives his/her right to an administrative disqualification hearing and a disqualification penalty has been imposed. The disqualification penalty cannot be changed by a subsequent fair hearing decision. The household member, however is entitled to seek relief in a court having appropriate jurisdiction. The period of disqualification may be subject to stay by a court of appropriate jurisdiction or other injunctive remedy.”