Ind. Code » Title 4
Indiana Code

Ind. Code § 4-21.5-3-9 (2025)

Ultimate authority; acting as or designating an administrative judge; qualifications; disqualification; procedures

✓ 2025 Indiana Code: the 2026 session is not included
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     Sec. 9. (a) Except to the extent that a statute other than this article limits an agency's discretion to select an administrative law judge, the ultimate authority may:

(1) act as an administrative law judge;

(2) designate one (1) or more members of the ultimate authority (if the ultimate authority is a panel of individuals) to act as an administrative law judge; or

(3) before July 1, 2020, designate one (1) or more:

(A) attorneys licensed to practice law in Indiana; or

(B) persons who served as administrative law judges for a state agency before January 1, 2014;

to act as an administrative law judge. After June 30, 2020, the ultimate authority may request assignment of an administrative law judge by the office of administrative law proceedings.

A person designated under subdivision (3) is not required to be an employee of the agency. A designation under subdivision (2) or (3) may be made in advance of the commencement of any particular proceeding for a generally described class of proceedings or may be made for a particular proceeding. A general designation may provide procedures for the assignment of designated individuals to particular proceedings.

     (b) If the case involves:

(1) adjudication of:

(A) air pollution control laws (as defined in IC 13-11-2-6);

(B) water pollution control laws (as defined in IC 13-11-2-261);

(C) environmental management laws (as defined in IC 13-11-2-71); or

(D) solid waste and hazardous waste management laws under IC 13-19;

(2) rules of a board described in IC 13-14-9-1;

(3) the financial assurance board created by IC 13-23-11-1; or

(4) any agency action of the department of environmental management;

the administrative law judge assigned by the office of administrative law proceedings must meet the requirements listed under subsection (c).

     (c) An administrative law judge assigned under subsection (b) must:

(1) be a citizen of Indiana;

(2) be an attorney in good standing admitted to practice in Indiana;

(3) have at least five (5) years of experience practicing environmental or administrative law;

(4) be independent of the agency;

(5) meet the qualifications specific to environmental law as determined by the office of administrative law proceedings' training program; and

(6) be one (1) of three (3) administrative law judges in the office of administrative law proceedings designated to hear environmental matters.

     (d) A person may not knowingly assign an individual to serve alone or with others as an administrative law judge who is subject to disqualification under this chapter.

     (e) If the administrative law judge assigned to the proceeding believes that the judge's impartiality might reasonably be questioned, or believes that the judge's personal bias, prejudice, or knowledge of a disputed evidentiary fact might influence the decision, the administrative law judge shall:

(1) withdraw as the administrative law judge; or

(2) inform the parties of the potential basis for disqualification, place a brief statement of this basis on the record of the proceeding, and allow the parties an opportunity to petition for disqualification under subsection (f).

     (f) Any party to a proceeding may petition for the disqualification of an administrative law judge upon discovering facts establishing grounds for disqualification under this chapter. The administrative law judge assigned to the proceeding shall determine whether to grant the petition, stating facts and reasons for the determination.

     (g) If the administrative law judge ruling on the disqualification issue is not the ultimate authority, the party petitioning for disqualification may petition the ultimate authority, or, if the administrative law judge is employed or contracted with the office of administrative law proceedings, the director of the office of administrative law proceedings, in writing for review of the ruling within ten (10) days after notice of the ruling is served. The ultimate authority shall:

(1) conduct proceedings described by section 28 of this chapter; or

(2) request that the director of the office of administrative law proceedings conduct proceedings described by section 28 of this chapter;

to review the petition and affirm, modify, or dissolve the ruling within thirty (30) days after the petition is filed. A determination by the ultimate authority or the director of the office of administrative law proceedings under this subsection is a final order subject to judicial review under IC 4-21.5-5.

     (h) If a substitute is required for an administrative law judge who is disqualified or becomes unavailable for any other reason, the substitute must be appointed in accordance with subsection (a).

     (i) Any action taken by a duly appointed substitute for a disqualified or unavailable administrative law judge is as effective as if taken by the latter.

     (j) If there is a reasonable likelihood that the ultimate authority will be called upon to:

(1) review; or

(2) issue a final order with respect to;

a matter pending before or adjudicated by an administrative law judge, the provisions of section 11 of this chapter that apply to an administrative law judge or to a person communicating with an administrative law judge apply to a member of the ultimate authority and to a person communicating with a member of the ultimate authority.

As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.7; P.L.72-2014, SEC.4; P.L.205-2019, SEC.9; P.L.13-2021, SEC.2; P.L.128-2024, SEC.6.

 

Notes of Decisions
Cited in 5 cases (1 in the last 5 years), 2002–2025 · leading case: Patricia Terkosky v. Indiana Dep't of Educ., 996 N.E.2d 832 (Ind. Ct. App. 2013).
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Patricia Terkosky v. Indiana Dep't of Educ., 996 N.E.2d 832 (Ind. Ct. App. 2013). · cites it 4× “Code § 20-28-5-3 which provides that “the ‘department shall deter *846 mine details of licensing not provided in this chapter,’ ” and Ind.Code § 4-21.5-3-9 which notes that “the ALJ serves in the stead of the ultimate authority for the [IDOE].”
Breitweiser v. Indiana Off. of Env't Adjudication, 775 N.E.2d 1175 (Ind. Ct. App. 2002). · cites it 2× “Ind.Code § 4-21.5-3-9(d). There is no Indiana case law on the effect that a party’s filing of a motion to disqualify an ALJ has on the ALJ’s ability to act in proceedings involving that party.”
H.H. Ex Rel. Hough v. Indiana Bd. of Special Educ. Appeals, 501 F. Supp. 2d 1188 (N.D. Ind. 2007). · cites it 6× “They argue that Indiana Code § 4-21.5-3-9(c) puts the responsibility for disclosure of potential conflicts on the hearing officer or the BSEA and that neither party “appears to have made any such disclosures in this case.”
Everett Powell v. Indiana Real Est. Comm'n (mem. dec.), 147 N.E.3d 1042 (Ind. Ct. App. 2020). · cites it 2× “I.C. § 4-21.5-3-9(d). Powell asserts that the ALJ Panel had already formed an opinion about him because it had considered his case in the proceeding leading to his first, dismissed, appeal.”
Steven M. Shockley v. Indiana Real Est. Appraiser Licensure & Certification Bd., 267 N.E.3d 427 (Ind. Ct. App. 2025). · cites it 2× “Oosterhoff Deputy Attorney General Indianapolis, Indiana 5 In light of this disposition, we need not address the State’s claim under Indiana Code § 4-21.5-3-9 that Shockley was not entitled to judicial review because he failed to petition the director of the Office of…”
Ind. Code § 4-21.5-3-9(c): 1 case
H.H. Ex Rel. Hough v. Indiana Bd. of Special Educ. Appeals, 501 F. Supp. 2d 1188 (N.D. Ind. 2007). “They argue that Indiana Code § 4-21.5-3-9(c) puts the responsibility for disclosure of potential conflicts on the hearing officer or the BSEA and that neither party “appears to have made any such disclosures in this case.”
Ind. Code § 4-21.5-3-9(d): 3 cases
Breitweiser v. Indiana Off. of Env't Adjudication, 775 N.E.2d 1175 (Ind. Ct. App. 2002). “Ind.Code § 4-21.5-3-9(d). There is no Indiana case law on the effect that a party’s filing of a motion to disqualify an ALJ has on the ALJ’s ability to act in proceedings involving that party.”
Everett Powell v. Indiana Real Est. Comm'n (mem. dec.), 147 N.E.3d 1042 (Ind. Ct. App. 2020). “I.C. § 4-21.5-3-9(d). Powell asserts that the ALJ Panel had already formed an opinion about him because it had considered his case in the proceeding leading to his first, dismissed, appeal.”
H.H. Ex Rel. Hough v. Indiana Bd. of Special Educ. Appeals, 501 F. Supp. 2d 1188 (N.D. Ind. 2007). “They argue that Indiana Code § 4-21.5-3-9(c) puts the responsibility for disclosure of potential conflicts on the hearing officer or the BSEA and that neither party “appears to have made any such disclosures in this case.”
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