The

OAH

Janet Napolitano
Governor
Cliff J. Vanell
Director

Vol. 37
November 2005
www.azoah.com

Official Newsletter of the Arizona Office of Administrative Hearings

Interview with the Director
What follows is the text of an imaginary interview with the
Director of the Office of Administrative Hearings.

You have been Director of the Office of Administrative
Hearings for ten years. Looking back, what life experiences prepared you most for your position?
Cliff Vanell: Certainly having been a pro tem judge gave
me insights into the demands of adjudication. But I would
have to say that being a prosecutor and having to present
cases before a variety of judges was invaluable. Even now,
the occasional appearance before a judge, as I had to do
before a probate judge when establishing my father’s death
after his disappearance at sea, reminds me how important it
is to have a kind and compassionate judge.
I was heavily involved with the Drug Recognition Expert
(DRE) Program (a police investigatory tool to identify the
drugged driver) as it developed in Arizona. I presented
numerous seminars to judges, prosecutors and defense
attorneys and edited the DRE Newsletter, published by the
Phoenix Prosecutor’s Office. This experience convinced
me how important it is to constantly disseminate the
accomplishments of an organization as a way to constantly
challenge it to always be better, faster and smarter.
I often relate how I inadvertently came upon my mother in
the early hours of the morning before she had to appear at
a Justice Court on a dispute with a merchant. My mother
was a very strong woman and seeing her visibly worried

was startling. As soon as she saw me, she displayed her
typical iron lady routine. I have never forgotten how
frightening going to court or a hearing can be to a lay
person.
I also have shared how as a law student I found myself at
the county library surrounded by law books puzzling out
an issue for a brief. At the same table was a young man
who looked like he had just come off a workshift at some
factory. He too was surrounded by law books and must
have been trying to do his own legal work. I remember
thinking that if this was such as challenge to one who had
legal training, what must it seem like to him. That image
has stuck with me.
Lastly, three years working in a copper smelter and acid
plant taught me that there is never an excuse to interrupt
services (even if the furnace is leaking molten copper like
an upside down volcano), there is always a solution (even
if you have to figure out a pneumatic pump on the fly), and
that constant monitoring is essential to keep a process
working smoothly.
What do you do when different judges have differing
interpretations of a statute, or view issues in different
ways?
The judges must decide cases and independently reach
their best judgments. To that extent I see my most
important function as protecting that independence, I am
careful not to impugn it myself. Collegiality is the

“Interview”
(continued on page 2)

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
began in 1945 with California. The current American states and cities, and Canadian

provinces, having adopted the model, with year of inception are: Alabama (1998);
Alaska (2004); Arizona (1996); California (1961); City of Chicago (1997); Colorado
(1976); Florida (1974); Georgia (1995); Iowa (1986); Kansas (1998); Louisiana (1996);
Maine (1992); Maryland (1990); Massachusetts (1974); Michigan (1996); Minnesota
(1976); Missouri (1965); New Jersey (1979); New York City (1979); North Carolina
(1986); North Dakota (1991); Oregon (1999); South Carolina (1994); South Dakota
(1994); Tennessee (1975); Texas (1991); Washington D.C. (1999); Washington (1981);
Wisconsin (1978); Wyoming (1987); and Province of Quebec ( ).

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.

1st Quarter Statistics At A Glance
Acceptance Rate:
ALJ findings of fact and conclusions of law were accepted in
86.33% of all Administrative Law Judge Decisions acted
upon by the agencies.* ALJ Decisions, including orders,
were accepted without modification in 80.51% of all
Administrative Law Judge Decisions acted upon by the
agencies. 39.1% of all agency modification was of the order
only (i.e. penalty assessed).
Appeals to Superior Court:
There were 39 appeals filed in Superior Court.
Rehearings:
The rehearing rate was 1.8%, defined as rehearings
scheduled (12) over hearings concluded (668).**
Completion Rate:
The completion rate was 103.6%, defined as cases
completed (2006) over new cases filed (1936).
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 1st quarter) was 44.85 days. The
frequency of continuance, defined as the number of
continuances granted (329) over the total number of cases
first scheduled (2046), expressed as a percent, was 16%.
The ratio of first settings (2088) to continued settings on the
calendar (283) was 1 to 0.135
Dispositions:
Hearings conducted: 47%; vacated prior to hearing: 50%;
hearings withdrawn by the agency: 3%.

defendant than one with a reputation
for harsh sentencing. However,
since agencies can reject or modify
the decision of the Administrative
Law Judge, the tactical value of a
peremptory strike is greatly reduced
and is now attempted only as a
motion to continue by other means.
What do you do when you receive
a complaint about a judge?
I will not act until all other parties
have had an opportunity to likewise
comment. I limit my review to the
audio record of the hearing and will
not revisit procedural rulings or
substitute my judgment for that of
the judge. If parties disagree with a
judge’s decision, the party may
request a rehearing or appeal to
Superior Court. My focus is on any
complaint that parties were not
treated with respect or given a full,
fair opportunity to present their
evidence. I have found that
complaints can be invaluable
teaching tools.

How do you handle motions for
change of judge?
Contrary Recommendations and Agency Response: 15%
Such motions require a showing of
of Administrative Law Judge Decisions were contrary to the
bias, prejudice, personal interest or
original agency action where the agency took a position.
lack of necessary expertise. Often
Agency acceptance of contrary Administrative Law Judge
the motion will amount to a disDecisions was 68.9%.
agreement with how the judge
viewed the evidence, or sometimes
be predicated on the failure of the
judge to grant a procedural motion.
* 4.77% of Administrative Law Judge Decisions were certified as final by
I will not allow a motion for a
the OAH due to agency inaction or were rendered moot by settlement.
** Cases which were vacated or which settled on the day of hearing are
change of judge to be used as a
not included.
motion to reconsider a judge’s
rulings and I will not substitute my
judgment for that of the judge. This goes
back to protecting the judges’ indepen“Interview”
dence.
(continued from page 1)
medium in which we reach consensus
if it is possible. I have transmitted
decisions that I disagreed with. The
ability of the agencies to reject or
modify a decision is a better way of
dealing with inconsistencies than
establishing OAH-wide positions that
are not based on true consensus.
Why do parties not have peremptory
strikes like in Superior Court?
I know that peremptory strikes in
Superior Court can have real tactical
value to litigants. For instance, a
judge with a reputation for lenient
sentencing could be preferable to a

Who assigns the Administrative Law
Judges?
I make the assignments, either personally,
or as delegated to the case management
team. Judges are assigned according to
cadres which I have created, matching
judges to needs, interest, education and
experience.
Why is OAH so hard on continuances?
More than 60% of motions to continue are
granted, which I am sure is not the
impression of many parties. It is true that
parties must establish good cause, and

mere agreement of the parties to
continue will be met largely with a
denial of a continuance. Ours is a
scarce resource. With more than 8,500
cases filed before 18 administrative law
judges, each case set within 60 days of
the agency’s request, or an appeal by a
party, and each requiring a minimum of
30 days notice, we cannot afford to
have wasted hearing time. It isn’t fair to
other parties who must wait for their first
hearing date to have continued settings
erode the available time. When the
Legislature created the OAH, they
intended to implement a “fast-track”
system. The OAH strives to maintain
the spirit and intent of our enabling
statutes.
Do you warn agencies when the time to
accept, reject of modify is looming?
The OAH views its decisions as the final
decision unless the agency accepts,
rejects or modifies. From that point of
view, there is nothing to “warn” the
agency about.
Does the OAH take positions on
pending legislation?
The OAH does not speak in favor of, or
in opposition to, legislation. The OAH
will comment as to whether a proposal
is consistent with our mission as
currently defined, and whether there are
unintended consequences to a proposal. We will recommend language
that we think will better effectuate the
intent of a proposal.
What do you look for in an Administrative Law Judge?
Any candidate must be hardworking
and have significant recent trial or
hearing experience. I look for someone
who is both intelligent and compassionate. I have used the image of two
matched horses pulling a cart. If one is
too strong, the cart will topple or be
unstable. We have to get the facts
right, be able to write concise decisions
that justify our decisions. However, we
must also do so in a way that assures
parties they have been fully heard.
Someone is going to lose. That is the
nature of adjudication. People can
accept a negative outcome if they have
been given a fair shot before someone
that they have confidence in.

“Interview”
(continued on page 4)

page 2

Agency Response to Administrative Law Judge Decisions July 1, 2005 - September 30, 2005
Administrative Law Judge
Decision moot
1.68%

700

595

600

Administrative Law Judge
Decision certified as final upon
agency inaction
3.09%

Agency rejects the Administrative
Law Judge Decision
4.38%

500

400
cases

Agency amends order only
5.54%
300

Agency accepts without
modification
76.68%

200

100

Agency amends findings of
fact/conclusions of law only
8.63%

67
43

34

24

13

0
Agency accepts without Agency amends findings
modification
of fact/conclusions of law
only

Agency amends order
only

Agency rejects the
Administrative Law Judge Administrative Law Judge
Administrative Law Judge
Decision moot
Decision certified as final
Decision
upon agency inaction

Average Time Between Selected Events - Appealable Agency Actions v.
Contested Cases*, July 1 - September 30, 2005
70.00
60.00

52.08

59.76

Days

50.00
40.00
30.00
15.05

20.00
10.00

11.79 9.80
1.74

14.89

AAA

*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.

CC

2.82

0.00
Request for Hearing to
Scheduling

Scheduling to First
Hearing Date

Conclusion of Hearing
to ALJ Decision

ALJ Decision to
Agency Action

1936 Cases Filed July 1, 2005- September 30, 2005
1st Q

Accountancy
Acupuncture Board
Administration
Admin. Parking
Agriculture
Ag. Emply. Rel. Bd.
AHCCCS
Alternative Fuel
Appraisal
Arizona Trial Courts
Arizona RetirementSys.
Attorney General
Arizona Works
Athletic Board
Banking
Behavioral Health Ex.
Fire/Building/Life Safety
Charter Schools
Chiropractic
Clean Elections
Community Colleges
Cosmetology
Criminal Justice
Dental

FY 2006

3
3
0
0
1
1
32 32
0
0
0
0
897 897
0
0
7
7
0
0
12 12
0
0
0
0
0
0
12 12
0
0
13 13
0
0
0
0
3
3
0
0
1
1
2
2
7
7

1st Q

Economic Security
Economic Security-CPS
Education (Board)
Education (Department)
Environ. Quality
Fingerprinting
Funeral
Gaming
Health Services
Insurance
Land
Liquor
Lottery
Maricopa Cty. Housing
Massage Therapy
Medical Board
Medical Radiologic
Naturopathic
Nursing
Nursing Care Admin.
Occupation Therapy
Optometry
Osteopathic
Parks

0
45
0
7
17
0
0
3
114
21
5
12
1
0
0
7
5
0
32
0
0
0
0
0

page 3

FY 2006

0
45
0
7
17
0
0
3
114
21
5
12
1
0
0
7
5
0
32
0
0
0
0
0

1st Q FY 2006

9
Peace Ofc. Standards
3
Pharmacy Board
0
Physical Therapy
0
Podiatry
0
Psychologist Examiners
0
Public Safety - CW
Public Safety - Trans
3
0
Public Safety - Adult CC
0
Pvt. Post. Ed.
2
Racing
0
Radiation Regulatory
Registrar of Contractors 454
Real Estate
128
16
Revenue
School - Deaf & Blind
0
3
Secretary of State
State Board of Education 0
Structural Pest Control
0
0
Technical Registration
0
Veterans Home
0
Veterinary Board
Water Qual. App. Bd.
0
Water Resources
2
Weights and Measures 47

9
3
0
0
0
0
3
0
0
2
0
454
128
16
0
3
0
0
0
0
0
0
2
47

Evaluations of OAH Services
Note: The four major groups of those who responded are: represented private party; unrepresented private party; counsel for a private party; and counsel for the agency. The evaluations
are filled out immediately after the hearing, and the evaluations are not disclosed to the ALJ
involved. They are used by management to improve the OAH process and do not affect the
decisions issued.

All Responses 1st Quarter

Average
Poor

Excellent
Good
Average
Poor

ue
st
io
n
Q
1
ue
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Q
2
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6
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7
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8
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9

Good

140
120
100
80
60
40
20
0

Q

Q

Excellent

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

350
300
250
200
150
100
50
0

Unrepresented Responses 1st Quarter

Questions:
1. Attentiveness of ALJ
2. Effectiveness in explaining the hearing process
3. ALJ’s use of clear and neutral language
4. Impartiality

Why does the OAH seem so statistically driven?
The Legislature has mandated certain timetables and requires
the OAH to report statistical measures. In addition, the
Legislature has identified specific performance measures.
Statistical measures are essential to identifying problems early.
My constant monitoring of the OAH process is akin to the
monitoring I did at the smelter and acid plant. Many times I
prevented real damage by being alert. I recall that occasionally
the bolts that held the large ore chains together would come
loose causing days of delay. I decided to make a point of
taking a flashlight and watching the chains for a full cycle at
least four times a shift. The one time that I spied a loose bolt
made it all worthwhile. Likewise at the OAH, the sooner I can
determine that cases are taking longer to schedule or that the
flow in hearing and writing is being compromised, the sooner I
can take steps to rectify the situation.
What new technical advances does the OAH have planned?
The OAH has moved to digital recording of hearings with the
non-confidential records being available on-line the next day.
We now conduct hearings by videoconference to seven remote
locations throughout the State. In both cases, we have made
our process more accessible to everyone. We plan to have a
brief introduction to the OAH process played in each hearing
room before every hearing by the end of the year. This is an
extension of our efforts to educate the parties, particularly the
unrepresented, so that they can feel they have done a good job
in presenting their case. I think of my mother and that young
man when I consider this and hope that we are doing every-

5. Effectiveness in dealing with the issues of the case
6. Sufficient space
7. Freedom from distractions
8. Questions responded to promptly and completely
9. Treated courteously

thing we can to make our hearing process as accessible
and non-threatening as possible.
Where do you see the OAH in 2015?
Well, I am working on gene splicing and
teletransporting…Seriously, I see us as working hard to
continue to provide full, fair, impartial, independent and
prompt hearings. I see us contributing to Arizona’s
quality of life.
How have you changed?
I have become more peaceful. I have come to appreciate
opposition as a gift.
What do you like most about the OAH?
The OAH is a human institution and is all about people
and their relationships. I really enjoy listening to the
collegial banter among the Administrative Law Judges. I
am always impressed by the wealth of experience and
commitment they bring to their task. The support staff is
creative and works very hard to maintain both the
atmosphere of total customer service while still managing
to maintain a highly efficient workflow. I like most what
obviously everyone at the OAH likes the most: we are all
proud to be part of an important mission and enjoy public
service.

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