Before the

The North Dakota Human Rights Coalition (NDHRC), by their counsel, comment on the Department’s Notice of Intent to Adopt Administrative Rules to Implement the North Dakota Human Rights Act (HRA) and the North Dakota Housing Discrimination Act (HDA).

The NDHRC is a broad-based coalition of individuals and organizations with an interest in the furtherance of human rights in North Dakota. The NDHRC provides education on human rights, including discrimination, civil rights, the Universal Declaration of Human Rights, and information on how human rights are protected and addressed in North Dakota. The mission of the NDHRC is to work to effect change so that all people in North Dakota enjoy full human rights.

The NDHRC commends the Department for its work on the draft regulations. The North Dakota Human Rights Act and the North Dakota Housing Discrimination Act are vitally important statutes, and the regulations will provide significant guidance to both the agency and the public regarding their implementation and enforcement.

The NDHRC encourages the Department to include in its regulations a definition of the standard of “probable cause,” and to ensure the consistent use of that term throughout the proposed regulations. The standard for probable cause has not been explicitly defined in either the HRA itself or the Department’s proposed rules. Additionally, the term is used interchangeably within the proposed rules with an equally indeterminate “reasonable cause” standard. Finally, the probable cause standard is further undermined by the regulations’ introduction of a legal sufficiency test, which represents a standard higher than that created by the North Dakota legislature in the HRA.

As discussed in more detail below, a clear regulatory definition of probable cause consistent with that envisioned by the legislature is important for several reasons. First, the Department will benefit because its actions will be guided by a consistent standard. This will promote effective, even-handed processing of complaints. Additionally, the inclusion of a clearly-articulated standard will enhance public perception of the Department as an impartial agency that processes complaints in accordance with established guidelines. Finally, a definition of probable cause will also assist complainants and respondents. They will understand the standard governing determination of complaints and will be better able to prepare and respond to them. As the statute and the proposed rules recognize, a probable cause determination by the Department has implications for subsequent litigation on a complaint. Because of the larger legal import of a Department finding, it is imperative that all parties are fully informed as to the probable cause standard the Department will employ in investigating and making determinations about human rights complaints.

For these reasons, the NDHRC encourages the Department to add a definition of probable cause in its proposed regulations. The definition might be added to 46-04-01-01, reading: “‘Probable Cause’ means a determination after investigation that the facts can reasonably support a belief that a discriminatory practice occurred.” As explained below, such as definition is consistent with North Dakota’s human rights laws and is similar to that used other jurisdictions as well.

B. “Probable Cause” Should Be Defined So That It Is Consistent With the North Dakota Human Rights Act and Existing North Dakota Judicial Interpretations of Probable Cause in Other Civil Matters.

The North Dakota Human Rights Act explains the role of a probable cause finding in the investigative process. Section 14-02.4-23(2) states that after conducting an investigation, the Department “shall determine from the facts whether probable cause exists to believe that a discriminatory practice has occurred.” (Emphasis added.) Pursuant to the HRA, for the Department to make a finding of probable cause, it must determine only that the facts support a belief that discrimination occurred; it does not require that a complainant prove that discrimination occurred. Should the Department determine “probable cause exists to believe that a discriminatory practice has occurred,” it is required by § 14-02.4-23(3) to then proceed to conciliation of the complaint or an administrative hearing.

The NDHRC urges the Department, in considering how to define probable cause, to look to established legal precedent in the State of North Dakota and elsewhere. In other civil contexts, the North Dakota Supreme Court has explained that a probable cause standard is akin to a “reasonable person” standard. In comparable situations, courts defer to fact-finding determinations by administrative agencies that meet such a standard. The courts’ key focus when reviewing agency findings is to “determine whether a reasoning mind could reasonably have determined the factual conclusions were supported by the weight of the evidence.” Walton v. North Dakota Department of Human Services, 522 N.W.2d 336, 338 (N.D. 1996) (citing Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D. 1979).

C. Relevant Definitions of “Probable Cause” Used in Other Jurisdictions Provide Useful Guidance.

The Supreme Court of South Dakota has offered an even more detailed analysis of probable cause specifically within the context of the South Dakota human rights law. According to the South Dakota Supreme Court, a probable cause finding requires “only that a reasonable, intelligent and prudent person would have more than a suspicion, upon reasonable inquiry, that a cause of action exists, whether the chance of success on the merits is great or small.” Erdahl v. Groff, 576 N.W.2d 15, 19 (S.D. 1998). The Court described this as a “lesser standard,” which required less proof than a “preponderance of the evidence” standard. Id. The NDHRC believes the South Dakota Supreme Court’s interpretation of this language is consistent with the language and intent of the North Dakota Human Rights Act, which equates probable cause with a reasonable belief that the facts indicate discrimination, but does not require a preponderance of evidence or conclusive proof of such discrimination. N.D. Cent. Code § 14-02.4-23 (2001).

Interpretations of federal antidiscrimination law are also instructive here. For example, federal courts have described the importance of a applying a lesser standard in Equal Employment Opportunity Commission (“EEOC”) determinations in complaints alleging discrimination in violation of federal law. For example, the United States Court of Appeals for the Sixth Circuit has noted that EEOC determinations are intended to serve two purposes: “[to provide] notice to the employer and a common ground for conciliation.” EEOC v. McCall Printing Corp., 633 F.2d 1232, 1237 (6th Cir. 1980). An agency determination letter is not the equivalent of a legal pleading. The Sixth Circuit expressly declined to treat “a determination letter with greater formality than that attached to a pleading.” Id. at 1236-37. Similarly, the Fourth Circuit also has held that the determination serves notice and conciliatory purposes, but does not indicate an adjudicative finding on the merits of the claim. EEOC v. Chesapeake & Ohio R.R., 577 F.2d 229, 232 (4th Cir. 1978).

III. The Proposed Rule Concerning “Investigation and Disposition” Establishes a “Reasonable Cause” Standard And a “Legal Sufficiency” Test And Is Therefore Inconsistent with the Controlling Statute.

The NDHRC urges the Department to revise proposed regulation 46-04-01-05 to make it consistent with the North Dakota Human Rights Act. In its current form, the proposed regulation exceeds the underlying statutory authority in two ways. First, it adds “reasonable cause” as a standard to be used in making determinations on complaints. Second, it adds a legal sufficiency test as the measure of such determinations. The NDHRC recommends that this language be removed in order to ensure consistency with the underlying statute and legislative intent. If the language is retained, the NDHRC believes that both the proposed regulation and individual Department charge determinations are less likely to withstand judicial scrutiny.

North Dakota law requires that administrative regulations not exceed the scope of their underlying statutory basis. State courts are granted express authority to invalidate an agency’s rulemaking when a rule “is beyond the scope of the agency’s authority to adopt.” N.D. Cent. Code § 28-32-47(3) (2001). The proposed regulation’s addition of “reasonable cause” contradicts the express and unequivocal language of North Dakota statute, which requires that following an investigation, “the department shall determine whether probable cause exists to believe that a discriminatory practice has occurred.” N.D. Cent. Code § 14-02.4-23 (2001) (emphasis added). The use of a “reasonable cause” standard in proposed regulation 46-04-01-05(2)-(3) cannot be reconciled with the controlling statute and should be removed.

Even less compatible with the HRA is the introduction of a legal sufficiency test as the basis for a reasonable cause finding in proposed regulation 46-04-01-05(3). The regulation states that in assessing reasonable cause, the DOL “shall consider whether the facts concerning the alleged discriminatory practice are sufficient to warrant the initiation of a civil action in court.” The language of the controlling statute, 14-02.4-23, makes no allowance for such a test. Instead, the statute explains that the finding of probable cause is sufficient to trigger resolution through conciliation or resort to the administrative hearing process.

Further, courts in other jurisdictions have rejected similar approaches that equate the standard for probable cause with a stringent “legal sufficiency” test. An agency determination is simply “not designed to adjudicate . . . [a respondent’s] alleged violations.” Chesapeake & Ohio R.R., 577 F.2d at 232. To ask the Department to engage in such adjudication would be equivalent to asking it to assume the role of the courts. This is not the Department’s role.

The addition of a legal sufficiency test creates a higher standard for probable cause determinations than authorized by statute, rendering the proposed regulation unlikely to survive judicial scrutiny. Just as importantly, Department determinations based on such a standard may be reversed.

In sum, the NDHRC recommends that the Department take two steps to ensure that the proposed regulations comply with the controlling statute. First, the term “reasonable cause” should be replaced by “probable cause” in 46-04-01-05(1)-(2). Second, the legal sufficiency test outlined in part (2) should be replaced with the definition of “probable cause” suggested above, which is more consistent with both the underlying statute as well as other judicial interpretations of “probable cause” in civil contexts.

IV. The Regulations Should Reflect the Department’s Statutory Obligation to Make Probable Cause

Determinations on Every Complaint and To Provide for Administrative Hearings Where Probable Cause Has Been Found.

The NDHRC is concerned that the Department’s proposed rules fail to reflect and implement two significant obligations imposed by the Human Rights Act: first, the Department’s statutory obligation to make a probable cause finding on each complaint filed; and second, the Department’s obligation to provide for an administrative hearing where it has found that there is probable cause to believe that discrimination has occurred and conciliation efforts have failed.

Section 14-02.4-23(2) of the Human Rights Act mandates that once an aggrieved individual has filed a complaint with the DOL, “[t]he department shall determine from the facts whether probable cause exists to believe that a discriminatory practice has occurred.” N.D. Cent. Code § 14-02.4-23 (2001) (emphasis added). Despite this clear statutory obligation to make a probable cause determination in each complaint, the proposed regulations provide that “[t]he department may close a complaint prior to the completion of its investigation if . . . [t]he complaint is deferred to a federal agency for investigation under the terms of a work-sharing agreement between the department and the federal agency.” 46-04-01-05(4)(f). The interpretation of the statutory language as reflected in this proposed rule appears inconsistent with legislative intent, as expressed by the unambiguous statutory language in the Act, for the Department to make probable cause determinations on every complaint. Consequently, the NDHRC urges the Department to make clear in the final regulations that it recognizes and intends to fulfill its statutory obligation to make probable cause determinations on every complaint that comes before it for investigation.

A related area of inconsistency between the HRA and the Department’s proposed regulations concerns the statutory obligation of the Department, once it has determined that probable cause exists and conciliation has been unsuccessful, to provide for an administrative hearing on the complaint. The statute is clear and unambiguous on this point: “If the department determines that probable cause exists to believe that a discriminatory practice has occurred and is unable to resolve the complaint through informal negotiations or conciliation, the department shall provide for an administrative hearing in the manner provided in chapter 28-32 on the complaint.” N.D. Cent. Code § 14-02.4-23(3) (2001) (emphasis added). Given the clear legislative mandate to the Department requiring it to provide for administrative hearings where appropriate, the NDHRC is concerned that the proposed rules do not anywhere address this obligation. The NDHRC urges the Department to include its final rules language implementing § 14-02.4-23(3), which should both acknowledge the Department’s obligation to provide for administrative hearings and describe the procedures for implementing the administrative hearing requirement.

The North Dakota Human Rights Act protects the rights of citizens to file a complaint of discrimination, to testify about alleged discrimination, and to assist in the “observance and support” of the Act. N.D. Cent. Code § 14-02.4-18 (2001). Threatened or actual reprisal against citizens engaging in any of these activities constitutes a form of discrimination. Id. Such reprisal can take any form, including economic. Id. The proposed regulations, however, are silent on the issue of retaliation. The NDHRC recommends that the Department include in its final rules provisions designed to ensure enforcement of the statutory protection from retaliation.

First, the proposed regulations should make explicit in the “Definitions” section (46-04-01-01.7) that retaliation is one of the discriminatory practices prohibited by the Act itself. Second, the Department’s regulations should address the special urgency of retaliation allegations. The NDHRC believes that the EEOC’s approach provides useful guidance here. In its regulations implementing various federal employment discrimination statutes, the EEOC has recognized that retaliation must be remedied promptly. If unresolved, retaliation creates additional harm to complainants. It also has detrimental effects on the broader community, including “a chilling effect upon the willingness of individuals” to oppose discrimination or to participate in administrative processes to resolve discrimination. EEOC Compliance Manual

§ 8-I (A) (1998). To confront the immediate harm of retaliation, the EEOC will seek temporary or preliminary relief before it completes processing of a retaliation charge when there is likelihood that the complainant “will suffer irreparable harm because of the retaliation.” Id. The NDHRC recommends that the Department also emphasize prompt resolution of retaliation complaints. One means to achieve this is an express statement in the Department’s regulations granting priority processing to complaints containing allegations of retaliation.

VI. THE REGULATIONS SHOULD CONTAIN PROVISIONS THAT DESCRIBE THE Investigative Process IN GREATER DETAIL.

The NDHRC appreciates the Department’s effort to codify the procedures for investigating and disposing of complaints, but believes the proposed regulations will benefit from additional detail in this area. Proposed Rule 46-04-01-05(1) states only that the Department “shall investigate complaints alleging discriminatory practices.” However, the regulation is silent as to what procedures and practices will be used by the Department, or what types of evidence will be gathered. Such information could easily be included in the HRA regulations. A thoroughly documented investigative process will better inform potential complainants and respondents about the process in which they are participating. A more detailed description of the investigative process also will facilitate consistent Department practices, and will enhance public perception that the Department works to investigate complaints in a uniform and evenhanded manner.

Many states offer explicit guidance regarding the investigative process in their own Human Rights regulations. For example, Minnesota explicitly outlines the procedures that may be used to investigate an complaint and the types of evidence that may be gathered. Minn. R. § 5000.0500-0510 (2003). Additionally, the regulations provide that the Minnesota Department of Human Rights may use interviews (or depositions) to collect information from any person related to the complaint. § 5000.0500(2). Conferences involving both, or either, of the parties may be arranged by the Department, and recorded. § 5000.0510. Absent privilege, production or inspection of documents and other tangible things may be compelled. § 5000.0500(3). The use of written interrogatories, an inexpensive and effective means of obtaining answers to specific question, is also permitted. § 5000.0500(4).

California’s Fair Employment and Housing Commission adopted equally thorough regulations pertaining to the investigative process. Cal. Code Regs. Tit. 2, § 7400-37 (2004). A separate section of the California regulations is devoted to outlining the procedures for the discovery process, and defining the types of evidence that may be gathered. § 7417. The section also includes definitions of relevant terms, such as “statements” taken from witnesses.

The NDHRC recommends that the Department follow the examples of these states and expand its regulations regarding the investigative process. Identifying specific investigative procedures that might be used and explaining the types of evidence that might be gathered will benefit all parties, and should result in more thorough investigations and greater predictability of outcomes. Finally, documenting this process through regulations will underscore public perception that the Department works to resolve complaints according to standardized practices.

VII. the Regulations SHOULD BE AMENDED TO ELIMINATE Confusion Between ADMINISTRATIVE Complaints and District Court Complaints.

The NDHRC recommends that the wording of proposed rule 46-04-01-02(7) be clarified so that the distinction between a DOL complaint and a complaint filed in state or federal court is clear. Sections (1)-(6) outline the procedures for filing an administrative complaint with the Department, but (7) states that “[a] complaint may be filed in state court without first being filed with the department.” This creates the impression that a complainant may file his or her administrative complaint with a court to initiate litigation. The section should be revised to differentiate between an administrative complaint filed with the DOL and a complaint filed with the courts.

VIII. THE REGULATIONS SHOULD PROVIDE FOR APPROVAL AND ENFORCEABILITY OF CONCILIATION AGREEMENTS BY THE DEPARTMENT.

The NDHRC commends the Department for emphasizing the importance of conciliation of discrimination complaints, and believes the Department can best promote conciliation by clarifying and expanding the Department’s own role in the conciliation process. In particular, the HRA regulations should articulate a clear method for approving and monitoring conciliation agreements. This would further the legislative preference for conciliation expressed in the HRA. § 14-02.4-22. It would also prevent the need for complainants to file new charges should respondents fail to comply with conciliation agreements.

Proposed Regulation 46-04-01-04 states “[a] conciliation agreement between a respondent and the complainant is subject to departmental approval.” The NDHRC believes this regulation will be more effective if the methods for obtaining such departmental approval of conciliation agreements are clearly defined.

Minnesota’s regulations explaining the approval process might serve as a model for North Dakota. Minn. R. § 5000.0800 (2003). Minnesota requires that conciliation agreements must be “reduced to writing.” § 5000.0800(3). The written agreement has the same weight as a final decision made by the department, and is equally enforceable. Id. An administrative law judge may issue an order that embodies the terms of a conciliation agreement. Id.

The proposed regulations do not contain any provisions providing for the monitoring of the conciliation agreements by the Department. Absent such oversight, the parties are left to comply with conciliation agreements entirely at their own discretion. If a respondent fails to comply with an agreement, the complainant is left with no alternative but to return to the Department and seek its intervention anew. The NDHRC urges the Department to include provisions in its final rules that will designate a process for monitoring conciliation agreements.

Minnesota has recognized the importance of monitoring conciliation agreements. Minnesota’s regulations require that its Department of Human Rights monitor all agreements that require specific performance. § 5000.0800(3)(a). Should the Department believe that a respondent has failed to comply with a conciliation agreement, it commences investigation. Id. If noncompliance has occurred, the Department may initiate action to enforce the agreement. Id.

Similarly, New York has created regulations that outline both a mandatory investigation of compliance with conciliation agreements and a time frame for such investigations. 9 NYCRR § 465.18 (2004). The Division of Human Rights must investigate whether a respondent is complying with the terms of a conciliation agreement. 9 NYCRR § 465.18(a). Investigation must occur within one year of the date of the agreement. Id. Investigation of compliance may also occur “at any other time” in the Division’s discretion. Id.

IX. Respondents should be required to file an answer to a charge of discrimination.

The NDHRC urges the Department to include in its final rule a requirement that a respondent file with the Department a written answer to a complaint against it. Proposed rule 46-04-01-03 states that a respondent may file a written answer to the complaint of an alleged discriminatory practice. A written answer by the respondent is optional, while the complainant is required to file a written complaint, which is supplied to the respondent. While the respondent receives all the information supplied to the Department by the complainant, the complainant is deprived of reciprocal information that would be supplied by a respondent’s written answer. This lack of reciprocity undermines the complainant’s ability to respond to any new information or issues raised by the respondent, in turn hindering his/her opportunity to receive a full and fair hearing from the Department.[2]

As currently drafted, the regulation provides a respondent with no incentive to submit any response at all. While a respondent who fails to provide a written response may be construed as waiving its right to submit an initial counter-argument to the complainant’s charge, the practice gives no advantage to the charging party at all. An investigation will eventually take place in any event, at which point the respondent will again be given an opportunity to provide the Department with its own evidence.

Allowing a respondent to elect whether to answer the charge against it hinders the process of investigation, causing an increased burden on the Department’s resources, and hampering the complainant’s ability to seek a timely remedy. To require a respondent to file a written answer would help to address both of these issues. The NDHRC therefore recommends replacing the word “may” in the proposed regulation with “shall,” so that the second sentence of the rule reads: “The respondent shall file a written answer to the complaint within ten days of the date the respondent receives notice of the complaint.”

This proposed rule would be similar to that in the Minnesota Human Rights Act and its implementing regulation, which read: “The respondent shall file with the department a written response setting out a summary of the details of the respondent's position relative to the charge within 20 days of receipt of the charge.” Minn. Stat. § 363A.28(1) (2003); see also Minn. R.

§ 5000.0500(1) (2003). Should a respondent fail to file this answer, the statute provides for the possibility of a default judgment to be entered against it. § 363A.28(1).

While the Minnesota statute allows 20 days instead of the 10 proposed in North Dakota, the additional time is less important than the requirement of providing a written answer to the complaint. To the extent the Department is concerned with providing respondents with sufficient time to prepare a written answer, the Department could consider implementing a requirement that a written answer be filed, but allow a respondent more than the proposed 10 days to do so.

X. The role of the department during the conciliation process should be clarified.

Proposed rule 46-04-01-04 should include a statement clarifying the Department’s role during the process of conciliation. Specifically, complainants should be made aware that the Department does not represent them during this process. Without such a statement, and given that complainants may not be fully aware of their right to legal counsel, parties may be under the mistaken impression that the Department itself is representing their interests, and will be providing legal advice to them.

To avoid such misunderstandings, the NDHRC recommends adding to the proposed rule a description of the specific duties of the Department in the conciliation process. Particular mention should be made that the Department does not represent parties during this process.

XI. THE REGULATIONS SHOULD ENSURE THAT Complainants ARE Informed of Their Right to Legal Representation.

The right of a complainant to be represented by legal counsel should be included in the Department’s final rules. In the proposed rules, no reference to this right is included anywhere. Without such express reference, a complainant may mistakenly interpret this absence as meaning s/he cannot be represented by counsel, or may fail to realize that this option exists. Additionally, the absence of such a provision also could be construed as implying the Department itself will be providing legal advice.

To address this concern, the NDHRC recommends adopting language similar to that used in the Minnesota Human Rights regulations: “A person may be represented by legal counsel at any stage of proceedings before the department.” Minn. R. § 5000.0300(1) (2003). This phrase could be inserted in proposed rule 46-04-01-02, or added as a separate rule itself. Wherever it is included, a statement that the Department will effectively communicate with the counsel of those parties who are represented should accompany this proposed addition.

XII. The REGULATIONS Should Recite the Statute of Limitations for Filing a Complaint.

The statute of limitations for filing both a charge of discrimination with the Department and an action in district court under the North Dakota Human Rights Act should be included in the Department’s final rules. Currently, these rules recite neither the requirements of filing with the Department within 300 days of the alleged discriminatory conduct, nor the requirement of bringing a court action within 90 days of the conclusion of the Department’s investigation/ probable cause determination.

While these requirements are described in the statute itself, they also should be included in the proposed rules to avoid any confusion. N.D. Cent. Code § 14-02.4-19 (2003). Of particular importance is the 90-day limit to bring an action in court, due to this very limited time frame. Because complainants may not have access to the HRA or the Department’s rules implementing the statute, the NDHRC urges the Department to include in its final rule a provision that mandates that every determination letter sent to complainants includes a statement notifying the complainant of the 90-day limit in which to file suit.

The NDHRC recommends including both of these requirements in the proposed rules. The initial limit of 300 days to file with the Department could be inserted into 46-05-01-02, which includes the other requirements of filing a complaint. The limit of 90 days to bring an action in court following the Department’s completion of an investigation could be included at the end of 46-05-01-03, which explains the investigation process. Otherwise, these limits should be added to these proposed rules as a separate section.

XIII. FOR STATUTE OF LIMITATIONS PURPOSES, A Complaint Should Be Deemed Filed When the Department Is First Contacted BY THE COMPLAINANT.

Proposed rule 46-04-01-02(5) should be changed so that a complaint is deemed filed at the time the Department is first contacted regarding the alleged discriminatory conduct. Rules 46-04-01-02(2)-(4) require a complainant to complete an initial intake questionnaire, after which the Department assesses the jurisdiction and timeliness of the allegations. Should the Department determine that the charge is timely, and does in fact allege a violation, it prepares a complaint to be signed by the charging party. Under the proposed rules, only when this officially prepared complaint is received will the complaint be regarded as filed.

The NDHRC is concerned that if the Department’s assessment is prolonged or if a complainant contacts the Department close to the deadline for filing, the statute of limitations could expire between the initial contact and when the Department prepares, sends out and finally receives back the signed complaint. This practice could bar claims that were timely reported due to the speed with which the Department is able to process these claims and make the initial assessments. Under this proposed rule, the statute of limitations is effectively reduced by the time the Department requires to make these assessments. Additionally, a claimant has no way of knowing how long this period of time will be. The current rule, in essence, prevents a claimant from ever knowing the true date that discriminatory conduct must be reported.

The NDHRC recommends changing the text of 46-04-01-02(5) to read: “A complaint is filed, for timeliness and statute of limitations purposes, at the time the complainant completes the initial Intake Questionnaire, alerting the Department to the alleged discriminatory conduct.” Including the need to return an original signed complaint to the Department may still be required, but that event should not control the date of filing for limitations purposes.

Again, guidance in this area can be found in Minnesota law, which allows for the commissioner to dismiss complaints that fail to provide the minimum information needed to continue with the complaint process. Minn. Stat. § 363A.28(1) (2003). However, this determination does not affect the date of official filing of complaints.

The NDHRC appreciates the opportunity to submit these comments and stands ready to

assist the Department in crafting appropriate rules that will fully implement the North Dakota

[1] Some states offer briefer outlines of the investigative process, but add a requirement of due process in the investigation. New York, for example, chooses to define its investigative methods simply as field visits, written or oral inquiries, conferences, or any other method or combination of methods deemed suitable. 9 NYCRR § 465.6 (2004), but also includes the mandate that the Division of Human Rights is required to make a “prompt and fair investigation” of allegations.

§ 456.6(a).

[2] The North Dakota Supreme Court has explained that parties must receive a fair hearing before administrative agencies. See, e.g. Peterson v. North Dakota Dept. of Transportation, 536 N.W. 367, 369 (N.D. 1995). Should the court find a lack of fair hearing, it must overturn the agency determination. Id.