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.
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)].
Generally, administrative law judges
have the power and authority of a presiding officer or hearing
officer as described in SAPA.
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
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].
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
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.
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
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
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
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
During the hearing, the ALJ should
follow the testimony closely so that he or she will be able
to keep the hearing on course.
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
4. prejudice or bias against certain
categories of persons or the type of case that is before the
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)].
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.
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.
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].
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
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
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
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.].
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
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
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 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.
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.
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).
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].
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
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.