The Janet Napolitano Governor OAH Cliff J. Vanell Director Vol. 40 (Final) August 2006 www.azoah.com Official Newsletter of the Arizona Office of Administrative Hearings The Administrative Law Judge Cliff J. Vanell, Director Who are they? Prior to the creation of the Office of Administrative Hearings (OAH), administrative hearings were conducted at the state agencies, boards and commissions by hearing officers who were employees or contractors of the agencies whose actions were at issue. The relationship between the agency and the hearing officer understandably made it difficult for the public to assume the impartiality of the hearing officer. The OAH was created to address the inherent problem of perception involved in such in-house proceedings. Transferring hearings to an independent agency for adjudication by Administrative Law Judges (ALJs) with no relationship to the agencies has enhanced public confidence in the fairness of the process. In creating the OAH, the Arizona Legislature envisioned highly trained ALJs to provide full, fair, independent, and prompt hearings and decisions.1 To ensure that goal, Final Edition This marks the 40th and final edition of the OAH Newsletter. For over 10 years, the Newsletter has been a format for publishing statistics and informative articles. The website www.azoah.com is now both the repository of past editions of the Newsletter and the location for future reporting. Subscribers will now receive an e-mail link to the appropriate website pages. the Legislature mandated that the OAH Director make appropriate appointments of judges to preside over cases, provide training, solicit comment from parties, and set up and maintain a system to evaluate the ALJs. In addition, the Legislature provided a method by which a party may have an ALJ removed from a case by filing a motion with the Director when there is evidence of bias, prejudice, personal interest or lack of necessary expertise. Where do they come from? In light of these mandates, great weight is placed in assessing candidates for the position on commitment to the OAH mission of fairly and impartially deciding cases. Each candidate is assessed for his or her spirit of collegiality, ability to master a variety of specialties among a wide range of subjects, creativity, openness to peer review, and willingness to undertake continuing education to enhance his or her legal reasoning and writing skills. The ALJs come from a variety of backgrounds. Brief statements of the ALJs’ professional backgrounds are available on the OAH website (http://www.azoah.com/ ALJ.htm). Regardless of background and experience, certain skills and values have been identified which are at the core of who the ALJ becomes. The very fact that hearings are called “hearings” establishes the pivotal nature of listening. The very act of listening involves the “The ALJ” (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. 4th Quarter Statistics At A Glance Acceptance Rate: ALJ findings of fact and conclusions of law were accepted in 89.13% of all Administrative Law Judge Decisions acted upon by the agencies.* Administrative Law Judge Decisions, including orders, were accepted without modification in 80.88% of all Administrative Law Judge Decisions acted upon by the agencies. 50.4% of all agency modification was of the order only (i.e. penalty assessed). Appeals to Superior Court: There were 26 appeals filed in Superior Court. Rehearings: The rehearing rate was 1.47%, defined as rehearings scheduled (9) over hearings concluded (611).** conscious of the forces that can distract them, be they unguarded presuppositions, routine, professional pride, annoyance with an unruly witness or party, or personal problems. Lastly, dispassion is not to be mistaken for impartiality. The ideal ALJ is one who is impartial, not because dispassionate or uninterested, but because he or she is equally passionate for and interested in the needs of both parties. What do they want? The ALJs want to decide cases fully and fairly. Full participation by parties is essential to that task. Parties must develop the Continuance: The average length of a first time continuance based on a evidentiary record. No expertise sample of cases (first hearing setting and first continuance of the ALJ can substitute for both occurred in the 4th quarter) was 49.87 days. The relevant testimony or evidence. frequency of continuance, defined as the number of continuances granted (218) over the total number of cases Therefore, the ALJs have acted first scheduled (1808), expressed as a percent, was affirmatively to assist all parties in 12.06%. The ratio of first settings (1760) to continued preparing and presenting their settings on the calendar (212) was 1 to 0.12 cases. First, the OAH rules were Dispositions: designed by the ALJs to simplify Hearings conducted: 48%; hearings vacated prior to the administrative process. In hearing: 48.8%; hearings withdrawn by the agency: 3.2%. addition, the ALJs have written Contrary Recommendations and Agency Response: dozens of articles, available 14.1% of Administrative Law Judge Decisions were online (http://www.azoah.com/ contrary to the original agency action where the agency took a position. Agency acceptance of contrary AdminisOAHArticles.htm) to assist trative Law Judge Decisions was 86.8%. parties in preparing for hearing and presenting evidence. In * 3.07% of Administrative Law Judge Decisions were certified as final by the OAH due to agency inaction or were rendered moot by settlement. addition, the ALJs have partici** Cases which were vacated or which settled on the day of hearing are not included. pated in training videos, also available online, which discuss and demonstrate opening state“The ALJ” ments and closing arguments, and (continued from page 1) direct and cross examinations. ALJ decisions are searchable online (http:// need for patience. At hearing, the ALJ www.azoah.com/DecisionSearch.htm). must be willing to give great latitude for Researching an ALJ’s approach in personal style, choice of words, cadence similar cases is useful in knowing what and volume in speaking, and how the an ALJ might need to best understand parties choose to approach their cases. your case. The ALJ must be able to effectively explain the procedures that will be Maintaining Integrity and Quality. employed at hearing and be able to rule The ALJ presides over cases coming on objections in a way that helps parties before the OAH. Interim orders, the know what was objectionable and how to conduct of the hearing, and the resultproceed. Because every case is the ing decision are within the ALJ’s sound most important for the parties, the ALJ discretion. In light of the need to must be willing to give each case the protect the ALJ’s independence, OAH’s attention it deserves, without distraction primary quality control and manageand with as much understanding as the ment strategy has been to provide ALJ can muster. ALJs must therefore be continuous feedback to the ALJs. Completion Rate: The completion rate was 98.07%, defined as cases completed (1780) over new cases filed (1815). Such feedback has taken various forms. All parties are given an evaluation form at the beginning of each hearing and are given the opportunity to submit it for comment to the Director’s attention. Such comments are compiled and generalized so as not to influence an ALJ’s decision. Since November 1996, evaluations are handed out to four major groups of hearing participants: represented private party; unrepresented private party; counsel for a private party; and counsel for the agency. The results are not disclosed to the ALJs. To make sure that all participants are encouraged to respond, the bailiff provides a copy of the evaluation to parties before the beginning of the hearing. The essential function of the evaluations is to determine whether OAH has provided an accessible and respectful forum for the determination of the truth. Evaluation results indicate that satisfaction is high among all groups, as is illustrated in the quarterly statistics reported in the OAH Newsletters, available online (http:// www.azoah.com/NewslettersPDF.htm). An analysis of the unrepresented parties for any sample quarter indicates that even among this most vulnerable group, the OAH is seen to be functioning extremely well. The ALJs are monitored for compliance with the 20 day statutory mandate for issuing decisions. In addition, the annual evaluation of ALJs focuses on ensuring that the ALJs’ written decisions and orders are clear and complete, displaying good knowledge of statutes and rules governing assigned hearings, and that cases are managed effectively, including holding prehearing conferences to expedite the proceedings when appropriate, and ruling on motions and issuing appropriate orders in a timely manner. ALJs necessarily receive feedback by way of complaints that are fielded as well as through motions for change of ALJ. Each ALJ is required to review final administrative decisions by the agencies which modify facts, conclusions of law, or which reject the ALJs’ decisions to determine if errors were made and as a means for improving writing skills. (continued on page 4) page 2 Agency Response to Administrative Law Judge Decisions April 1, 2006 - June 30, 2006 Administrative Law Judge Decision moot 0.67% 700 Agency rejects the Administrative Law Judge Decision 2.67% 588 600 500 Administrative Law Judge Decision certified as final upon agency inaction 2.40% Agency amends order only 8.00% cases 400 300 Agency accepts without modification 78.40% 200 Agency amends findings of fact/conclusions of law only 7.87% 100 60 59 20 18 5 0 Agency accepts without Agency amends findings modification of fact/conclusions of law only Agency amends order only Agency rejects the Administrative Law Judge Decision Administrative Law Judge Decision moot Administrative Law Judge Decision certified as final upon agency inaction Average Time Between Selected Events - Appealable Agency Actions v. Contested Cases*, April 1 - June 30, 2006 60.00 51.29 50.00 51.90 *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. Days 40.00 30.00 20.00 12.45 14.43 15.02 10.16 1.46 AAA CC 10.00 2.24 0.00 Request for Hearing to Scheduling Scheduling to First Hearing Date Conclusion of Hearing to ALJ Decision ALJ Decision to Agency Action 1815 Cases Filed April 1, 2006 - June 30, 2006 4thQ FY 2006 Accountancy Acupuncture Board Administration Admin. Parking Agriculture Ag. Emply. Rel. Bd. AHCCCS Alternative Fuel Appraisal Arizona Trial Courts Arizona Retirement Sys. Attorney General Arizona Works Athletic Board Behavioral Health Ex. Fire, Bldg & Life Safety Charter Schools Chiropractic City of Phoenix Clean Elections Commerce Community Colleges Cosmetology Criminal Justice Dental 6 1 1 29 0 0 875 0 2 0 6 0 0 0 4 35 1 1 1 0 0 0 0 0 3 18 2 5 126 0 0 3364 0 26 0 32 0 0 0 5 103 2 4 1 5 1 0 1 2 36 4th Q FY 2006 Economic Security Economic Security-CPS Education (Board) Special Education Environ. Quality Financial Institutions 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 page 3 0 30 0 16 27 15 0 0 3 80 30 2 15 0 0 0 2 3 0 26 3 0 0 0 0 0 137 0 46 70 60 100 0 10 353 93 12 54 5 0 2 19 13 0 128 5 1 0 1 0 4thQ FY 2006 Peace Ofc. Standards 1 20 Pharmacy Board 0 5 Physical Therapy 0 5 Podiatry 0 0 Psychologist Examiners 0 1 Public Safety - CW 1 6 Public Safety - Trans 4 15 Public Safety - Adult CC 0 0 Pvt. Post. Ed. 0 0 Racing 1 12 Radiation Regulatory 0 0 Registrar of Contractors 448 1881 Real Estate 31 251 Revenue 8 41 School - Deaf & Blind 1 1 Secretary of State 2 23 State Board of Education 0 0 Structural Pest Control 2 11 Technical Registration 0 0 Veterans Home 0 0 Veterinary Board 0 0 Water Qual. App. Bd. 0 0 Water Resources 0 2 Weights and Measures 99 246 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. Unrepresented Responses 4th Quarter All Responses 4th Quarter Excellent Good Average Excellent Good Average Poor Q Q ue st io n 1 Q ue st io n Q 2 ue st io n 3 Q ue st io n 4 Q ue st io n 5 Q ue st io n 6 Q ue st io n Q 7 ue st io n 8 Q ue st io n 9 Poor 200 180 160 140 120 100 80 60 40 20 0 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 5 ue st io n Q 6 ue st io n Q 7 ue st io n Q 8 ue st io n 9 400 350 300 250 200 150 100 50 0 Questions: 5. Effectiveness in dealing with the issues of the case 1. Attentiveness of ALJ 6. Sufficient space 2. Effectiveness in explaining the hearing process 7. Freedom from distractions 3. ALJ’s use of clear and neutral language 8. Questions responded to promptly and completely 4. Impartiality 9. Treated courteously In addition to training, which includes State Bar sponsored continuing legal education, privately presented courses, as well as contracted presentations, the OAH provides 40 hours per year of continuing education opportunities to each ALJ to ensure professional development. Most importantly, the OAH is a collegial organization and the interplay among the ALJs is the greatest source of learning. The give and take, having their thoughts challenged, seeking advice and second opinions, having to justify positions and first takes on a subject – these are all invaluable processes to achieve and maintain quality. Where have they gone? One of our numbers has left us in death, and I take this time to recall ALJ Neal Jordan. Others have gone on to take positions with the judiciary, or other positions of esteem, such as with the Arizona State Bar. Some have left to pursue private professions. Our alumni are available online (http://www.azoah.com/Alumni.htm). Such esteemed alumni attest to the quality of the ALJ cadre. __________________________ Footnotes 1 A.R.S. § 41-1092.01 mandates that ALJs possess necessary technical expertise. A.R.S. § 41-1092.07 requires that the ALJs allow all parties the opportunity to respond and present evidence and argument on all relevant issues, and exercise reasonable control over the manner and order of cross-examining witnesses and presenting evidence to make them effective for ascertaining the truth. A.R.S. § 41-1092.05 provides that continuances are to be granted only for good cause. The ALJs must base any findings of fact exclusively on the evidence and on matters officially noticed. A.R.S. § 41-1092.08 mandates that written decisions contain a concise explanation of the reasons supporting the decision and that the decision, which may become the final administrative decision upon agency inaction, be transmitted to the agencies, boards, and commissions within 20 days. This publication is available in alternative formats. The OAH is an equal opportunity employer.