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Chapter 2: The Administrative Law Judge


This chapter examines the qualifications necessary for the position of an administrative law judge (ALJ), the position's powers and responsibilities, ethical considerations, and the efficacy of continuing education for ALJs.


Qualifications

General Qualifications

The ALJ must meet the legal qualifications established by the agency's enabling legislation and agency rules and regulations governing the position. SAPA does not establish any additional qualifications for a presiding officer.

The laws of the various agencies governing ALJs are not uniform. Some require that he or she be chosen from agency staff and, in some instances, satisfy certain additional criteria such as being admitted to practice law in New York State. Others may authorize the agency to borrow a qualified hearing officer from another State agency. Still others may permit the agency to hire a person with certain qualifications outside the agency. In some instances, the governing law requires two or more persons to preside over a case.

The agency typically designates who shall be the presiding officer of administrative adjudications. [See, e.g., SAPA §303]. Pursuant to Executive Order No. 131, each agency is required to have an agency adjudication plan that, among other things, identifies who presides over an administrative adjudication. [9 NYCRR §4.131]. The plans may identify the presiding officer by a variety of official titles, including "administrative law judge," "hearing officer," "per diem hearing officer," or "referee." [See Patrick J. Borchers & David L. Markell, New York State Administrative Procedure and Practice §11.17n2 at 396 (1995)--(hereinafter Borchers &Markell)].

Administrative Law Judges

Generally, administrative law judges have the power and authority of a presiding officer or hearing officer as described in SAPA.

Hearing Officer

A hearing officer is defined in Executive Order No. 131 as "a person designated and empowered by an agency to conduct adjudicatory proceedings" and includes hearing officers, hearing examiners, and administrative law judges. [9 NYCRR §4.131]. Many agency regulations refer to a "hearing officer" as the person with authority to hold a hearing.

Per Diem Hearing Officer

A per diem hearing officer is generally one who is hired on a temporary basis, or hired for a particular matter or series of matters. Some agencies may hire hearing officers on a per diem basis, but other agencies may rely exclusively on agency staff. [See Borchers & Markell, §11.17n.3 at 397].

Judicial Qualifications

In addition to the legal qualifications set forth in the agency's governing law, the person who acts as the presiding officer must meet certain criteria appropriate to an individual making decisions on behalf of the agency and New York State.

The characteristics of the presiding officer are set forth in Executive Order No. 131. He or she must be "knowledgeable, competent, impartial, objective and free from inappropriate influence." [9 NYCRR §4.131].

The ALJ must know the governing rules and regulations of the agency. Although he or she may communicate with other members of the agency about the agency's rules and policies in limited circumstances during the course of a hearing, the ALJ is expected to have sufficient knowledge and expertise to be able to proceed with the hearing independently (see the discussion on Ex Parte Communications that follows). He or she must also analyze testimony and other evidence to frame the issues, and determine the credibility of witnesses by assessing their testimony and demeanor.

The ALJ must be patient and tactful and control hearings with dignity and decorum. He or she should articulate necessary questions, points and comments in comprehensible language.

The ALJ should approach the hearing with an open mind, without bias or prejudgment toward the issues. The ALJ must maintain impartiality toward the case and, perhaps most importantly, maintain an appearance of impartiality so that the parties truly believe that the ALJ is not favoring one side over the other.

Finally, the ALJ should exhibit good common sense in handling the matters before the court.

Powers and Responsibilities

General Authority

Subject to the statutes, and the rules, regulations and procedures governing the particular agency, the ALJ generally has the authority to:

a. hold hearings within the scope of his or her duties;

b. administer oaths or affirmations;

c. issue subpoenas as authorized by statutes, rules, regulations, or procedures;

d. receive relevant and material evidence, and rule on offers of proof;

e. take or cause to be taken depositions, as authorized by statute, rule, regulation or procedure;

f. hold conferences to settle or simplify the issues, or to obtain stipulations as to facts or proof by consent of the parties, as authorized by established procedure; in some instances, mediate disputes between parties as authorized by the agency;

g. dispose of procedural requests, including requests for adjournments, in accordance with agency rules, regulations and procedures;

h. direct parties to appear at hearings;

i. regulate and control the course of the hearing;

j. examine witnesses and parties as the case requires;

k. consider and evaluate the facts and evidence on the record as well as arguments and contentions of the parties;

l. determine the credibility and weight of the evidence in making findings of fact and conclusions of law;

m. render written decisions, reports or recommendations as authorized by statutes, rules, regulations or procedures; [SAPA § 307 requires that in an adjudicatory proceeding findings of fact expressed in statutory language must be accompanied by a statement of the underlying facts that support the findings. If a party submitted proposed findings of fact in accordance with an agency rule, the findings by the presiding officer must include a ruling on each proposed finding].

n. certify questions of law to a higher administrative tribunal as authorized by statutes, rules, regulations or procedures;

o. make a complete record of the proceedings including all relevant and material matters and exhibits for a review on appeal by an administrative tribunal or court; and,

p. take any other action in a proceeding necessary to complete the case as authorized by the established procedure of the agency or the hearing process. [See SAPA §304].


Impartial Hearings

In an impartial hearing, the ALJ ensures that the issues are clearly defined, receives and considers all relevant and reliable evidence in an orderly manner, and reaches a fair, independent and impartial decision. The ALJ should exercise appropriate judicial demeanor so that the parties have the opportunity for a fair hearing in a neutral atmosphere.

The ALJ can ensure an impartial hearing by being well prepared and by giving his or her full attention to the hearing. Before opening the hearing, he or she should read the pleadings, pre-hearing documents including any pre-filed testimony, and trial briefs. He or she should prepare any pre-hearing statements in advance and read them into the record. In a multi-day hearing, he or she should also review the previous day's notes in preparation for the next day's hearing.

During the hearing, the ALJ should follow the testimony closely so that he or she will be able to keep the hearing on course.

Neutrality

The ALJ's relationship to the agency, and his or her relationship to or preconceived view of the parties, are often concerns for parties at an agency hearing. The ALJ's neutrality, particularly in cases involving a reexamination of an agency's determination, as well as his or her competence and attitude, will inspire public confidence in the ALJ and the fairness of his or her decisions.

Although SAPA does not provide any guidance as to the standard for judging the neutrality or bias of the ALJ, the case law offers some guidance in analyzing the parties' concerns. The ALJ's employment by the agency does not by itself establish bias. [See, e.g., Hirsch v. Corbisiero, 155 AD2d 325, 548 NYS2d 1 (1st Dept.1989); Whalen v. Slocum, 84 AD2d 956, 446 NYS2d 727 (4th Dept. 1981)]. However, his or her personal stake in the outcome, such as receiving a profit or a personal benefit from the transaction at issue, is a basis for disqualification. [New York Public Interest Research Group, Inc., by Walthen v. Williams, 127AD2d 512, 511 NYS2d 864 (3d Dept. 1987); In the Matter of Richard M.Kessel, as Executive Director of the Consumer Protection Board of the State of New York v. Public Service Commission of the State of New York, 123 AD2d203; 511 NYS2d 441 (3d Dept. 1987)]. Likewise, observations by the ALJ prior to a hearing that the party is guilty would be considered prejudicial. [See, 1616 Second Avenue Restaurant, Inc. v. New York State Liquor Authority, 75 NY2d 158, 551 NYS2d 461, 550 NE2d 910 (1990); Tumminia v. Kuhlmann, 139 Misc2d 394, 527 NYS2d 673 (Sup. Ct. NY Co. 1988)].

In analyzing the potential for bias, the ALJ should consider whether he or she has any:

1. personal interest in the outcome of the case;

2. relationship by blood or marriage to any party, witness or representative;

3. present or past association in business affairs or in social matters with any party, witness or representative;

4. prejudice or bias against certain categories of persons or the type of case that is before the court.

Not only should the ALJ be free of any personal interest, bias or prejudice, but he or she must also be free of any reasonable suspicion of such interest.

If the parties believe the ALJ is biased against them, they have the option to make this concern part of the record. [SAPA §303 provides that: "upon filing in good faith by a party of a timely and sufficient affidavit of personal bias or disqualification of a presiding officer, the agency shall determine the matter as a part of the record in the case."].

When a challenge is made and the ALJ believes that the challenge has merit or that there is the slightest probability of its validity, the ALJ should adjourn the proceedings to allow for the substitution of a new ALJ. [See, SAPA §303].

When the challenge clearly lacks merit, is made solely for nuisance value, or is just an attempt to choose another ALJ for matters of personal preference, the presiding ALJ should reject the challenge and state the reasons for doing so on the record.

The parties cannot immediately appeal this determination; it is preserved for review after a determination on the merits of the case. [SAPA §303; See, e.g., Wesser v. State Dep't of Health, State Bd. Of Professional Medical Conduct, 60 NY2d 785, 457 NE2d 784, 469 NYS2d 678 (1983)].

Judicial Attitude, Behavior and Demeanor

Maintaining an air of neutrality is as important as the ALJ's actual impartiality. That can best be established by maintaining civility at the hearing. The ALJ should exercise control over the attorneys and witnesses to ensure that the proceedings move forward without delay. The ALJ should proceed courteously toward counsel even when ruling against them. He or she should not argue or become angry with counsel even in the face of inappropriate behavior.

The ALJ should also avoid fraternizing with the attorneys and the parties.


Judicial Independence


Relations with Administrative Personnel of Agency

As an employee of a State agency, the ALJ is often on the same payroll as the members of administrative staff who investigate the cases that come before the ALJ. These employees often are called as witnesses at the agency hearings. The fact that the agency combines investigatory, prosecutory and quasi-judicial functions under one roof does not by itself violate due process. Nevertheless, the employer-employee relationship of the agency and the ALJ is viewed circumspectly. Agencies are under certain restraints in how they treat the persons in their employ who preside over agency hearings.

Executive Order No. 131 establishes general principles regarding administrative adjudication and requires that each agency establish an "administrative adjudication plan" and organizational blueprint that addresses these principles.

The internal arrangement of the agency should insulate the decision maker from agency influences. The courts have been critical of situations where the decision maker is significantly involved in the administrative process of the agency. [For example, the court found a constitutionally unacceptable violation of due process where the general counsel for the agency appeared and represented a complainant before the State Department of Human Rights through one of her assistants and then, as a result of subsequently being appointed as Commissioner, served in her new role as the reviewer of the decision of the ALJ. General Motors Corp. v. Rosa, 82 NY2d 183, 604 NYS2d 14, 624 NE 2d 142 (1993)].

An agency cannot direct the ALJ to reach a certain result in a pending case. If the agency head's ultimate decision conflicts with that of the ALJ, a written explanation must accompany the decision. An agency supervisor can, however, give "advice or guidance" to the ALJ if the supervisor believes such advice is necessary to "assure quality standards of an agency or to promote consistency in agency decisions." [Executive Order No. 131 (9 NYCRR §4.131)]. The ALJ should consider agency policies in reaching a determination and, as noted in the discussion regarding Ex Parte Communications that follows, can seek advice from employees of the agency regarding issues of law.

An agency cannot exercise "command influence" [Borchers & Markell §3.18 at 61] to manipulate the persons who act as ALJs in agency proceedings by using case quotas or other methods of evaluating whether the ALJ's actions "favor or disfavor the agency or state." [Id.]. In evaluating its ALJs, the agency should be guided by the goal of ensuring competent and fair judges. The agency should consider the ALJ's performance based on his or her objectivity, fairness, productivity, diligence and temperament.

Ex Parte Communications

Additional limits on agency combination of roles come from SAPA and Executive Order No. 131 which limit ex parte contacts with ALJs. [See, SAPA §307(2); 9 NYCRR §4.13].

Adjudicatory proceedings

Ex parte communications in adjudicatory proceedings are strictly circumscribed by SAPA §307(2) and Executive Order No. 131. [9 NYCRR §4.131]. Both apply to adjudicatory proceedings. They do not apply to initial licensing applications of public utilities or "proceedings involving the validity or application of rates, facilities or practices of public utilities or carriers."

With certain exceptions, SAPA applies to members or employees of an agency designated to make a decision or findings of fact and conclusions of law, including a State board acting as a finder of fact under the supervision of an ALJ. With certain exceptions, Executive Order No.131 applies to hearing officers, hearing examiners, and ALJs assigned to conduct adjudicatory proceedings. It does not apply to agency heads or members of a State board or commission.

SAPA §307(2) forbids direct or indirect ex parte communications with "any person or party" regarding issues of fact in an adjudicatory hearing and ex parte communications with "any party or his representative" regarding issues of law. However, section 307(2) allows the agency member or employee to communicate ex parte with other agency members and to seek the advice of agency staff as to matters of law so long as the agency staff has not engaged in the investigation or prosecution of the case or any factually related case.

Executive Order No. 131 forbids direct or indirect ex parte communications about the merits of an adjudicatory proceeding with any person but it does permit the presiding officer to communicate ex parte about questions of law with supervisors, agency attorneys, or other ALJs not currently or previously involved in the case or factually related cases. [9 NYCRR §4.131].

Where ex parte communications have significantly affected the process, the courts have voided the proceeding. [See, e.g., Signet Constr. Corp. v. Goldin, 99 AD2d 431, 470 NYS2d 396(1st Dept. 1984)]. However, few cases have established bias.

Rulemaking

Unlike adjudicatory proceedings, the rulemaking process gives wide latitude to ex parte communications and the ALJ should be mindful of the distinctions. [See, e.g., SAPA §307; Executive Order No. 131 (9 NYCRR§4.131)(applicable only to adjudicatory proceedings); see, e.g., Wesser v. State Dep't of Health, State Bd. Of Professional Medical Conduct, 60 NY2d 785, 457 NE2d 784, 469 NYS2d 678 (1983); see, generally, Borchers & Markell §4.19 at 115.].

Ethics

An Administrative Law Judge must be neutral and objective, honest, fair, and free from agency or personal bias.

The ALJ must be as independent as possible of the administrative agency, since the ALJ's role is to re-examine and re-appraise the determinations made by the agency. If the agency has erred, it is the ALJ's responsibility to so decide.

Since relatively few decisions are adjudicated further, the ALJ treats each hearing as if it were the parties' last opportunity for a full and fair decision.

The public and agency are well served by the judicious exercise of the ALJ's powers. Assuring a fair hearing inspires public confidence in the ALJ and his or her decisions. It also demonstrates that the agency is performing its functions with impartiality.

In New York State, an ALJ is subject to at least one and often several standards of ethics, depending upon the ALJ's professional and employment status. For example, every ALJ is subject to the New York State Code of Ethics, found in the Public Officers Law. Other ethics provisions that may be applicable to individual ALJs include:

1. The Code of Professional Responsibility, which applies to ALJs who are also attorneys. The Code is printed in the Appendix of the Judiciary Law;

2. The Code of Judicial Conduct, which applies to all ALJs who are also judges within New York's Unified Court System, but may also apply to other ALJs, as explained below. The Code is printed in the Appendix of the Judiciary Law;

3. The Ethics in Government Act contained in the Public Officers Law that applies to public officials, and the regulations adopted thereunder by the New York

State Ethics Commission;

4. Ethics provisions that may be contained within agency regulations in the New York State Official Compilation of Codes, Rules and Regulations (NYCRR), which apply to agency employees; and,

5. The agency's Code of Ethics for ALJs, if one has been adopted. See example from the New York State Board of Workers' Compensation, Appendix C.

Thus, a lawyer ALJ would be subject to: Public Officers Law §74, the Code of Professional Responsibility, and any agency-specific ethics provisions. If he or she is full or part time staff, Public Officers Law §73 also applies.

A non-lawyer ALJ would be subject to: Public Officers Law §74 and the agency's ethics provisions, plus Public Officers Law §73 if he or she is full or part time staff. Generally, these provisions and regulations adopted under them cover activities including conflict of interest, financial disclosure, gifts, outside activities, honoraria, and post-employment restrictions. [The NYS Ethics Commission has published numerous guides and issued formal opinions on all of these issues. They can be found on the World Wide Web at http://www.dos.state.ny.us/ethc/ethics.html or by calling 1 (800) 87-ETHICS.].

Where does an ALJ go with questions about these ethics provisions? If a question pertains to either of the two state laws, Public Officers Law §§73 and 74, he or she may seek guidance and an opinion from the NYS Ethics Commission. He or she may also seek guidance from the agency's designated ethics officer. If it pertains to the professional codes which apply to lawyers or court system judges, he or she should inquire of the New York State Bar Association Committee on Professional Ethics or of the New York Advisory Commission on Judicial Ethics, respectively. For other questions, if there is no agency mechanism in place to handle ethics inquiries, an ALJ might approach the agency's chief ALJ or a neutral party for guidance (with the understanding that there may be no duty of confidentiality arising out of the inquiry).

The ALJ's ethics story does not end here, however, because portions of the Code of Judicial Conduct (CJC) may also apply. The Code states, "Anyone, whether or not a lawyer, who is an officer of a judicial system performing judicial functions, including an officer such as a referee in bankruptcy, special master, court commission, or magistrate, is a judge for the purposes of this Code." Although ALJs are not specifically mentioned in the list of persons for whom compliance is mandatory, ethics opinions in New York have considered the administrative adjudicatory system a form of the judicial system to which the CJC may apply.

The Code of Judicial Conduct

The New York State Bar Association Committee of Professional Ethics stated in 1991 that an ALJ is subject to Canon 3(c)(1) of the CJC. In that case, an ALJ who served in the Division of Tax Appeals (DTA) was required to recuse himself from hearing cases which were pending during his prior service as staff attorney for the same agency. Canon 3(c)(1) provides, "A judge should disqualify himself in a proceeding in which his impartiality might be reasonably questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (b) he served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter. . ." The Committee said that "ALJs of the DTA should be subject to those provisions of the CJC that impact directly on the integrity of their adjudicatory function. Canon 3(c)(1) is such a provision." [NYS Bar Assn. Comm. Prof. Ethics Op. 617, 2 (1991)].

The Committee looked to the commentary to Canon 3(c)(1)(b), which notes that "a lawyer in a governmental agency does not necessarily have an association with other lawyers employed by that agency within the meaning of this subsection; a judge formerly employed by a governmental agency, however, should recuse himself in a proceeding if his impartiality might reasonably be questioned because of such association." An ALJ might weigh such factors as the size of the legal office, the scope of his or her former responsibilities within the office, and "the extent to which cases were discussed with lawyers other than those formally assigned to them." [Id. at 3.]. The Committee concluded that while there is "no absolute prohibition" against an ALJ hearing a matter in these circumstances, "the ALJ has a duty to recuse himself or herself if his or her impartiality might reasonably be questioned." [Ibid.].

Citing Opinion 617, the Appellate Division, Third Department, said in 1991 that it "appears" that ALJs are subject to the Code of Judicial Conduct. An ALJ who is also a member of a union can avoid possible violation of Canon 7, restricting judges' political activity, by requesting a refund of any portion of dues that would go to political activities of the union. [Crosson v. Newman, 178 AD2d 719, 576 NYS2d 950 (3rd Dept. 1991)].

On the other hand, the New York Advisory Committee on Judicial Ethics said in 1996 that it was not authorized to answer a question about an administrative law judge, because the agency in question had not adopted the Code of Judicial Conduct. [N.Y. Advisory Comm. on Judicial Ethics Op. 96-47 (1996)]. A 1988 opinion of the N.Y.S. Bar Association Committee on Professional Ethics said that the CJC should not apply to ALJs in all of its particular provisions. A rigid application of Canon 5(E), prohibiting a judge from acting as an arbitrator or mediator, could "significantly disable an agency from fulfilling its intended purpose, with no countervailing purpose being served . . . Whether any given agency should prohibit its staff from acting as mediators or arbitrators is an issue that ought to be resolved by the agency itself, consistent with substantive law and the needs of the agency." [N.Y.S. Bar Assoc. Comm. Prof. Ethics, Op. 594 (1988)].

Because specific provisions of the CJC have been applied to ALJs in certain circumstances, absent a rule or code to the contrary, those who serve as ALJs should follow the provisions of the CJC wherever possible. When compliance might present an unreasonable or disproportionately heavy burden, the ALJ should seek an advisory opinion.

Codes of Conduct for Administrative Law Judges/Hearing Officers

Not entirely satisfied with such case-by-case, provision-by-provision application of the CJC to ALJs here as in other states, two national associations of ALJs have proposed model codes of ethics that take into account the special circumstances of state ALJs. For example, unlike judges working within the court system, ALJs serve in both quasi-legislative and quasi-judicial capacities. In addition, state ALJs may work part-time, and their salaries may not justify the same stringent restrictions on personal and professional activities that an appellate judge or a Federal ALJ would expect as part of the job. [See also, NYC Ethics Op. 1994-2.]. Both proposed model codes encourage mediation and arbitration, prohibited under Canon 5(e) of the CJC. Both allow an ALJ an outside practice of law, also prohibited by the CJC. In general, the restrictions that both model codes place on extra-judicial activities resemble those that the CJC places on part-time judges.

Adoption of Agency Codes

The clearest way to provide guidance to agency ALJs and hearing officers on standards of appropriate conduct is through the adoption of codes of conduct specifically for these employees. This may be accomplished on a statewide basis or it may be approached piecemeal agency-by-agency. To date, the Workers' Compensation Board is the only State entity to adopt a code of ethics for its ALJs (the Workers' Compensation Board's code is included in this manual as Appendix D).

Other Laws Restricting Activities of ALJs and Hearing Officers

In addition to agency specific ethics codes, some statutes may also impose restrictions on ALJs. For example, the Workers' Compensation Law restricts ALJs from engaging in any other employment except teaching in an institution of higher learning. [Workers' Compensation Law §150].

Continuing Education and Training

The training of an ALJ is an ongoing process. Supervisors should periodically observe hearings held by ALJs and then meet with them to review and evaluate their conduct of hearings. Supervisors should also hold regularly scheduled conferences to discuss problems, consider recent developments in case law, and review techniques for improvement.

When the agency's hearings are held in more than one location, meetings with staff from regional locations will offer an opportunity for exchanging experiences, problems and case law development.

Although New York mandatory continuing legal education requirements currently exempt ALJs, [22 NYCRR §1500.5(b)(1)(note that this requirement is currently under review and it appears likely that it will be changed so as to require ALJs to meet MCLE requirements)], continuing education and training is vital for keeping current with legal developments and ensuring quality in decision making. ALJs should consider participating actively in workshops and training sessions provided by the New York State Governor's Office of Employee Relations and the New York State Public Employees Federation, AFL-CIO, through the Professional Development Program of the Nelson A. Rockefeller College of Public Affairs and Policy and other professional educational programs.

Additionally, ALJs may wish to become active in various programs offered by law schools and local, state and national bar associations and other organizations that promote professional education in administrative law.

 
 
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