§ 35.186. Disqualification of a presiding officer.
A presiding officer may withdraw from a proceeding when he deems himself disqualified, or he may be withdrawn by the agency head for good cause found after timely affidavits alleging personal bias or other disqualification have been filed and the matter has been heard by the agency head or by another presiding officer to whom the agency head has delegated the matter for investigation and report.
Notes of Decisions An allegation that the Acting Commissioner presided over some initial hearings although he had appointed a presiding officer to conduct the hearings in the case, thus allegedly commingling investigative, prosecutorial and adjudicative functions in contravention of the companies’ constitutional due process rights, was not sufficient to render the available administrative remedy inadequate, so the companies’ petition was dismissed for failure to exhaust their administrative remedies. National Home Life Assurance Co. v. Insurance Department, 483 A.2d 1036, 1038 (Pa. Cmwlth. 1984).
Failure to move at the hearing that the hearing examiner disqualify himself on the grounds of bias constitutes a waiver of the issue. Savka v. Department of Education, 403 A.2d 142 (Pa. Cmwlth. 1979).
Cross References This section cited in 4 Pa. Code § 89.22 (relating to hearing examiner); 7 Pa. Code § 179.59 (relating to presiding officers); 7 Pa. Code § 179.96 (relating to conduct of hearing); 12 Pa. Code § 11.14 (relating to presiding officer); 34 Pa. Code § 3a.9 (relating to suspension or revocation of Pennsylvania inspector commission); 34 Pa. Code § 131.24 (relating to recusal of judge); 34 Pa. Code § 131.59 (relating to mediation); 34 Pa. Code § 401.14 (relating to decertification or refusal to certify); 52 Pa. Code § 5.482 (relating to disqualification of a presiding officer); 52 Pa. Code § 1003.73 (relating to Adjudication Department); 52 Pa. Code § 1005.183 (relating to disqualification of a presiding officer); 58 Pa. Code § 491a.6 (relating to hearing officers); 58 Pa. Code § 491a.7 (relating to presiding officers); and 61 Pa. Code § 703.34 (relating to hearing procedure).
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