Evaluations of OAH Services

The

All Responses 2nd Quarter

Unrepresented Responses 2nd Quarter
250

400

Jane Dee Hull
Governor

350

200
Excellent
150

Good

100

Average
Poor

50

300
250
200
150
100

Excellent
Good
Average
Poor

50
0

Q
ue
st
io
n
Q
1
ue
st
io
n
Q
2
ue
st
io
n
Q
3
ue
st
io
n
Q
4
ue
st
io
n
Q
ue
5
st
io
n
Q
6
ue
st
io
n
Q
7
ue
st
io
n
Q
8
ue
st
io
n
9

Q
ue
st
i
Q on 1
ue
st
i
Q on
ue
2
st
i
Q on 3
ue
st
i
Q on 4
ue
st
Q ion
ue
5
st
i
Q on 6
ue
st
i
Q on
ue
7
st
i
Q on 8
ue
st
io
n
9

0

Questions:

OAH

Cliff J. Vanell
Director

Vol. 18
January 2001
www.azoah.com

Official Newsletter of the Arizona Office of Administrative Hearings

THE PRE-HEARING CONFERENCE - IT WORKS

1. Attentiveness of ALJ
2. Effectiveness in explaining the hearing process
3. ALJ’s use of clear and neutral language
4. Impartiality
5. Effectiveness in dealing with the issues of the
case

Note: The four major groups of respondents are: Represented
private party; unrepresented private party; counsel for a private
party; and counsel for the agency. The respondents fill out the
evaluations immediately after the hearing and the evaluations are
not disclosed to the ALJ involved.

6. Sufficient space

George A. Schade, Jr., Administrative Law Judge
Director’s note: OAH is committed to fairness and making hearings accessible
to all. This article is the fourth in what we at OAH plan to be a series of
informational articles to educate the public and parties who appear before us
about the hearing process and how to better present their cases. The following
article may be found at OAH’s website at www. azoah.com along with all
previous articles published in the OAH Newsletter.

7. Freedom from distractions
8. Questions responded to promptly and

com-

pletely
9. Treated courteously

Office of Administrative Hearings
1400 West Washington, Suite 101
Phoenix, Arizona 85007

Although pre-hearing conferences are permitted under
the statutes and rules of the Office of Administrative Hearings, it
is the most underutilized effective procedure available for the resolution of administrative cases.
Two limitations in the current practice of administrative
case resolution highlight the usefulness of pre-hearing conferences, first, the very limited availability of formal means of discovery and, second, the deliberate speed with which the system now
moves.
The administrative arena has no provisions for the use
of interrogatories, requests for admissions, inspection of premises, and physical and mental examinations. A deposition is
restricted to a witness who cannot be subpoenaed or who is
unable to attend the hearing, and then in the manner and on the
terms designated by the administrative law judge. Even subpoenas for production of documents are subject to a showing to the
Administrative Law Judge that the party seeking discovery demonstrates that the party has a reasonable need for the discovery
sought.
A central mandate of the regulatory reform brought about
during recent years is a speedy resolution process. Hearings
must be held within a certain number of days following an appeal, and recommended decisions must be submitted and acted
upon within strict time deadlines. Once a request for a hearing

The Office of Administrative Hearings (OAH) began operations on January 1, 1996.
Administrative Hearings previously provided by regulatory agencies (except those
specifically exempted) are now transferred to the OAH for independent proceedings.
Our statutory mandate is to “ensure that the public receives fair and independent
administrative hearings.”
The process of unifying the administrative hearings function in OAH-style agencies

This publication is available in alternative formats.
The OAH is an equal opportunity employer.

date is filed with the Office of Administrative Hearings, the
parties can expect a setting within a quick and short time,
leaving a precious minimum of adequate time for pre-hearing discovery and preparation.
A pre-hearing conference will help counsel and parties to get around these two obstacles. Both discovery and a
reasonable timeline - which will insure better preparation for
an effective hearing - can be obtained through a pre-hearing
conference. Early settlement discussions can also be triggered.
Not all contested cases or appealable agency actions require or lend themselves to a pre-hearing conference. Some cases can be settled quickly, others do not
present complex or difficult issues, and some cases do not
merit the investment of legal resources associated with a
pre-hearing conference.
But a pre-hearing conference can be quite effective
in cases that:
1. Present scientific or technical issues such as environmental, land or water resources matters.
2. Involve voluminous documents such as public procurement or education matters.
3. Promise a strongly contested adversarial proceeding
such as professional disciplinary matters or money disputes.
4. Have experienced or specialized legal counsel who by
their presence elevate the dynamics of a case.

“Pre-hearings”
continued page 2

began in 1961 with California. The current states having adopted the model, with year
of inception are: Arizona (1996), California (1961), Colorado (1976), Florida (1974),
Georgia (1995), Illinois (1997), Iowa (1986), Kansas (1998), Louisiana (1996), Maryland
(1990), Massachusetts (1974), Michigan (1996), Minnesota (1976), Missouri (1965), New
Jersey (1979), North Carolina (1986), North Dakota (1991), Oregon (1999), South
Carolina (1994), South Dakota (1994), Tennessee (1975), Texas (1991), Washington
(1981), Wisconsin (1978) and Wyoming (1987).

Mission Statement:
We will contribute to the quality of life in the State of Arizona by fairly and impartially
hearing the contested matters of our fellow citizens arising out of state regulation.

Agency rej ects th e recommended
decision
2.92%

Agency Response to Recommended Decisions October 1 - December 31, 2000

Appeals to Superior Court:
The appeal rate was 1.71%, defined as appeals taken (26) over
hearings concluded (1516).
Rehearings:
The rehearing rate was 0.33%, defined as rehearings scheduled
(5) over hearings concluded (1516).
Completion Rate:
The completion rate was 89.28%, defined as cases completed
(1516) over new cases filed (1698).
Continuance:
The average length of a first time continuance based on a
sample of cases (first hearing setting and first continuance both
occurred in the 2nd quarter) was 34 days. The frequency of
continuance, defined as the number of continuances granted
(1119) over the total number of cases first scheduled (1788),
expressed as a percent, was 62.58%. The ratio of first settings
(2418) to continued settings on the calendar (1147) was 1 to 0.47.

1. Clarify or limit procedural, legal or factual issues.
Dispositions:
2. Consider amendHearings conducted: 62%; vacated prior to hearing: 35%;
ments to any pleadhearings withdrawn by agency: 3%.
ings.
Contrary Recommendations and Agency Response:
3. Identify and ex20.99% of recommendations were contrary to the original agency
change lists of witaction where agency took a position. Agency acceptance of
nesses and exhibits
contrary recommendations was 83.49%.
intended to be introduced at the hearing.
1% of ALJ recommended decisions were certified as final by the OAH due to agency
4. Obtain stipulations
inaction.
or rulings regarding
testimony, exhibits,
facts or law.
5. Schedule deadlines, hearing dates and
“Pre-hearings”
locations if not previously set.
6. Allow the parties opportunity to discuss
continued from page 1
settlement.
These objectives are clear. The
A pre-hearing conference is not auto- benefits of all are self-evident. But some
matic; it must be requested. Consider fil- objectives are generally more productive
ing a request for a pre-hearing conference than others and deserve pursuit.
as soon as a hearing date is obtained from
First, consider the use of substanthe Office of Administrative Hearings. Due tive pre-hearing motions. Draft and request
to the calendar demands upon the Office of a schedule for filing and briefing pre-hearAdministrative Hearings, the Administrative ing motions to address specific legal isLaw Judge may not be able to schedule a sues. Focus on the key issues of law which
pre-hearing conference for possibly two the case presents, rather than on simply
weeks after a request is made. The sooner procedural issues or issues which can be
a request for a pre-hearing conference is resolved at hearing.
made, the earlier one can be set, and conPre-hearing motions serve to adsequently, more time can be gained for case dress key legal issues, to assess the level
preparation and hearing strategy.
of factual preparation and knowledge of the
One possible negative of an early applicable law existing on the other side,
request, however, is that the other side may and to update the administrative law judge’s
not be fully prepared, but this exposes a knowledge of the applicable statutes, case
situation that you may wish to know early.
law and agency policies.

page 2

Agency amen ds recommended order
only
3.43%

1400
1267

ALJ decisi on certified as fi nal upon
agency i naction
1%

Agency amen ds findings of
facts/conclusions of law only
0.80%

1200

1000

Agency acc epts w ithout modific ation
92.55%

800

600

400

200
47

40

Agency amends
recommended order
only

Agency rejects the
recommended
decision

11

4

0
Agency accepts
w ithout modif ication

Agency amends
f indings of
f acts/conclusions of
law only

ALJ Decision Certif ied
as Final Upon Agency
Inaction

Average Time Between Selected Events - Appealable Agency Actions
v. Contested Cases*, October 1 - December 31, 2000

ing conference. Request that the Administrative
Law Judge make himself or herself available for a
telephonic conference to discuss issues encountered following the initial pre-hearing conference. A
telephonic conference can be very effective to resolve last minute “flare-ups.”
Once a pre-hearing conference has been
held, the Administrative Law Judge and counsel
will know each other better. Subsequent status or
telephonic conferences are easier to have once
everyone knows each other better. Therein lies a
powerful but not always evident benefit of an early
pre-hearing conference - positive rapport and trust
can be established among the participants.

60
52.08
50
42
40
Days

Acceptance Rate:
ALJ findings of fact and conclusions of law were accepted in
96.26% of all recommended decisions acted upon by the
agencies.* ALJ decisions, including recommended orders, were
accepted without modification in 92.82% of all recommended
decisions acted upon by the agencies. 81% of all agency
modification was of the order only (i.e. penalty assessed).

Second, ask for an early exchange
of proposed exhibits and witnesses. This
effort will accelerate discovery and enhance
your preparation for hearing. It may also
move settlement talks or possibly lead to a
mutual resolution.
Third, for a complex case, discuss
the use of a certified court reporter. The main
issues to be addressed would be (1) who
will pay for the reporter and (2) will the court
reporter’s transcript be the official record of
the hearing for purposes of decision-making and judicial review. The hearings at the
Office of Administrative Hearings are taped,
but a court reporter’s transcript is easier
and faster to generate and will greatly facilitate the Administrative Law Judge’s analysis and drafting. For the complex or lengthy
hearing, a court reporter’s transcript is invaluable.
Fourth, consider an infrequently
mentioned but potentially very useful action,
namely, a request to visit or inspect premises or other facilities which could help
your preparation for the hearing. Visits to
construction sites, homes and water
sources have been made with very effective
results.
If a visit or inspection of a particular location would benefit either your presentation or the Administrative Law Judge’s
understanding of factual issues, request
making a visit or inspection. Granting the
request, however, is within the discretion of
the Administrative Law Judge.
Under the rules of the Office of Administrative Hearings, the Administrative
Law Judge is not required to memorialize
the outcome of a pre-hearing conference.
Therefore, the best practice is to request
that the Administrative Law Judge issue a
written pre-hearing order memorializing all
directives and agreements.
The conclusion of a pre-hearing
conference does not necessarily mean the
end of this procedure. The progeny of the
pre-hearing conference are the Status Conference and the Telephonic Conference. An
Administrative Law Judge has discretion to
schedule pre-hearing and status conferences. The rules of the Office of Administrative Hearings provide that a pre-hearing
conference may be held telephonically.
Consider asking the Administrative Law Judge to direct the submission of
a written status report at an appropriate
time in the future (a useful procedure in
highly technical cases or in matters requiring a course of action over a designated or
prolonged period of time), or to schedule a
status conference or even another pre-hear-

cases

2nd Quarter Statistics At A Glance

Although not
required to do so,
generally the Administrative Law Judges
of the Office of Administrative Hearings issue a pre-hearing order outlining the issues to be discussed.
In your request for a
pre-hearing conference, feel free to suggest issues, subjects
or themes for the
judge’s pre-hearing
order.
A.R.S. § 411092.05(F) specifies
the areas that can be
explored at a prehearing conference.
They are:

30
18.72

20

13.78
6.9

10
0.35

AAA
CC

8.71

2

0
Request for Hearing to
Scheduling

Scheduling to First
Hearing Date

Conclusion of Hearing
to ALJ Decision

ALJ Decision to
Agency Action

*Note: Appealable Agency Actions are agency actions taken before an opportunity for a
hearing. A typical example would be the denial of a license. A party is entitled to a hearing
before the OAH before the action becomes final. Contested Cases involve actions yet to be
determined by an agency. An example would be proposed discipline on a professional license
with the possibility of suspension or revocation. Parties are entitled to a hearing before the
OAH prior to the agency acting.

4,075 Cases Filed July 1, 2000 - December 31, 2000
2nd Q FY 2001

Accountancy
ADA
Administration
Admin. Parking
Agriculture
Ag. Emply. Rel. Bd.
AHCCCS
Appraisal
AZ Commission on the Arts
Attorney General
Arizona Works
Banking
Behavioral Health Ex.
Building/Fire Safety
Charter Schools
Chiropractic
Clean Elections
Community Colleges
Cosmetology

20
0
15
141
0
0
797
4
0
0
0
7
3
36
0
0
2
0
4

35
0
19
202
0
0
2434
4
0
0
1
13
4
72
0
4
2
0
8

2ndQ FY 2001

Dental
Economic Security
Economic Security-CPS
Education
Environ. Quality
Funeral
Gaming
Health Services
Insurance
Land
Liquor
Lottery
Maricopa Cty. Housing
Medical Examiners
Naturopathic
Nursing
Osteopathic
Parks
Peace Ofc. Standards

page 3

1
0
41
1
29
0
3
42
32
1
21
2
0
5
0
4
0
0
1

3
0
112
1
53
0
5
95
56
4
50
3
0
6
0
8
0
0
5

2ndQ FY 2001

Pest Control
0
Physical Therapy
0
Podiatry
0
Psychologist Examiners
2
Public Safety - CW
0
Public Safety - Trans
1
Public Safety - Adult CC
0
Pvt. Post. Ed.
0
Racing
1
Radiation Regulatory
0
Registrar of Contr.
440
Real Estate
6
Revenue
25
School - Deaf & Blind
0
Secretary of State
0
Technical Registration
0
Water Qual. App. Bd.
0
Water Resources
5
Weights and Measures
6

0
0
0
3
1
5
3
0
5
0
756
28
47
0
0
5
0
9
13