The Office of Administrative Hearings The Eleventh Annual Report to Governor Janet Napolitano Senator Ken Bennett, President of the Senate Representative James P. Weiers, Speaker of the House Pursuant to A.R.S. § 41-1092.01(C)(5) and A.R.S. § 41-1092.01(C)(9) Cliff J. Vanell, Director November 1, 2006 20 Contents I. Introduction and Overview................................................................................. 1 II. Continued Development of the Office............................................................... 2 1. Newsletter ................................................................................................. 2 2. Video Productions ................................................................................... 2 3. Videoconference Implementation.. ......................................................... 2 4. Reduction in In-State Travel.................................................................... 2 5. Portal Searches of Administrative Law Judge Decisions..................... 2 6. Public Presentations................................................................................. 2 7. Professional Development ..................................................................... 2 III. Summary of Agency Use of OAH Services...................................................... 3 1. Case Management................................................................................... 3 a. Breakdown of Cases Filed by Agency ................................................ 3 b. Number of Cases Filed Versus Cases Concluded .............................. 4 c. Timeline of Case Management ........................................................... 5 d. Incidence of Continuance.................................................................... 6 2. Evaluation ................................................................................................. 9 a. Results of Public Evaluation ................................................................. 9 b. Incidence of Rehearing and Appeal .................................................... 11 IV. Acceptance of Administrative Law Judge Decisions by Agencies.................. 12 1. Agency Action ........................................................................................ 12 2. Agency Inaction With Subsequent Certification of Finality................ 16 V. Motions for Change of Administrative Law Judge Granted Pursuant to A.R.S. § 41-1092.07........................................................................................... 16 VI. Violations of A.R.S. § 41-1009 ......................................................................... 17 VII. Recommendations for Changes in the Administrative Procedures Act ..... 17 1. Right to settlement conferences in “contested cases” .................... 17 2. Establish uniform standards for appeal rights notice. ....................... 17 3. Establish uniform basis for rehearing.................................................. 17 4. Conform rehearing and appeal rules.................................................... 17 VIII. Recommendation for Changes or Improvements in Agency Practice with Respect to the Administrative Procedures Act................................... 18 Recoupment of Costs for Administrative Hearings ................................. 18 Appendix ............................................................................................................... 19 I. Introduction and Overview The Office of Administrative Hearings (OAH) was created pursuant to Laws 1995, Chapter 251, adding Arizona Revised Statutes § 41-1092 et seq., and commenced operation on January 1, 1996. Administrative hearings previously provided by regulatory agencies (except those specifically exempted) were transferred to the OAH for independent proceedings. There are two OAH locations, Phoenix and Tucson, with 31 full-time positions, including the Director, the Office Manager, 19 Administrative Law Judges, and 10 support staff. In addition to conducting hearings in Phoenix and Tucson, the OAH videoconferences Registrar of Contractors hearings in Flagstaff, Kingman, Lake Havasu City, Prescott, Show Low, Sierra Vista, and Yuma. Our statutory mandate is to “ensure that the public receives fair and independent administrative hearings.” Responsibility: The OAH understands its responsibility to create a system that is efficient and cost effective. The OAH statistics in FY 2006 indicate agency acceptance of Administrative Law Judge Decisions without modification was 84.68%. Agency acceptance of Findings of Fact and Conclusions of Law without modification was 91.07%. Rehearings (1.5%) and Appeals (3.7%) were rare. Evaluations by participants continue to indicate that Administrative Law Judges and the OAH were rated excellent or good in 95% of all responses. Integrity: The OAH takes its statutory mandate to provide fair, impartial and independent hearings seriously. Although part of the executive branch, together with its client agencies, the OAH maintains a conscious detachment from political issues and the missions of those agencies. Procedures, rulings, and case assignments are at all times kept free of outside pressures to ensure that the parties can be assured that hearings are impartial and independent. Commitment: The OAH views commitment as a willingness to advance its mission, including improving the quality of decision-writing. While the Administrative Law Judges must render decisions according to the evidence before them and using their independent judgment, the OAH now requires that Administrative Law Judges review all decisions that have been modified or rejected by an agency in order to encourage them to identify any possible miscitations or other areas where quality can be improved. This commitment is in furtherance of the duty of the OAH to provide continuing education to its Administrative Law Judges. Efficiency: Through careful case management, the OAH enjoys no backlog. The completion rate for cases in FY 2006 was 103.2%. 1 II. Continued Development of the Office 1. Newsletter The OAH has completed publication of four editions of the OAH Newsletter on a quarterly basis during FY 2006. The Newsletters report various performance measures and discuss current issues. The Newsletters contain a series of articles written by Administrative Law Judges that include practice pointers. All articles appear on the OAH website, along with the OAH performance measures. Copies of the four editions published in FY 2006 are included in the Appendix. 2. Video Productions The OAH completed a new in-house 8 minute video production which is played for parties immediately before hearings. The video subjects include direct and cross examinations, exhibits, objections, opening statements, closing arguments, and proper decorum. This allows the OAH to present a consistent message orienting the parties in a crisp, engaging manner. The Administrative Law Judge is able to start and stop the video in order to clarify issues according to the ALJ’s experience or questions from the parties. 3. Videoconference Implementation In June 2005, the OAH began conducting ROC hearings in outlying areas by videoconference. The OAH implemented videoconferencing to these areas in the following order: Kingman, Show Low, Prescott, Lake Havasu City, Flagstaff, Sierra Vista, and Yuma. The 79 travel weeks of FY 2005 were replaced in FY 2006 with 97 week-long videoconference dockets devoted to those outlying areas. Original case settings and continued settings for the outlying areas are now comparable to the metropolitan areas. 4. Reduction in In-State Travel Due to the implementation of videoconferencing, in-state travel was reduced by 90% in FY 2006. 5. Portal Searches of Administrative Law Judge Decisions The OAH implemented full text searching of its non-confidential Administrative Law Judge Decisions in FY 2006. Queries may be conducted by Administrative Law Judge, agency and date range, as well as by boolean modifiers and free text. See Appendix, Vol. 38. 6. Public Presentations Administrative Law Judges have presented on the subject of the OAH adjudicative process in various venues, including Phoenix College and private groups. Such public presentations cultivate public awareness of OAH’s mission and increase understanding of the administrative process. 7. Professional Development Administrative Law Judges continue to receive professional education in the subject matter of agencies as well as skills development. Administrative Law Judges Daniel Martin, Brian Tully, and Diane Mihalsky volunteered time as pro tem judges in the Maricopa County Superior Court and elsewhere. Administrative Law Judges Kay Abramsohn and Eric Bryant attended the 5th Annual National 2 Academy for IDEA (Individuals with Disabilities Education Act) in support of OAH’s new Special Education venue. On January 9-21, 2006 and April 24-28, 2006, Judges Thomas Shedden and Marianne Bayardi attended new Judge Orientation sponsored by the Arizona Supreme Court. On June 21-23, 2006, 12 Administrative Law Judges attended the Annual Judicial Conference sponsored by the Arizona Supreme Court. Judge Michael Barth was appointed as a Maricopa County Superior Court Commissioner in June 2006. Judge Wendy Morton was appointed Scottsdale’s newest city court judge in December 2005. III. 1. Summary of Agency Use of OAH Services Case Management a. Breakdown of Cases Filed by Agency (FY 2006): 7,360 cases were filed with the OAH in FY 2006. The distribution among the agencies, boards, commissions, or political subdivisions (Agencies) are as follows (in descending order by number of cases filed): Arizona Health Care Cost Containment System (AHCCCS) Registrar of Contractors Department of Health Services Department of Real Estate Department of Weights and Measures Department of Economic Security - Child protective Services (CPS) Board of Nursing Department of Administration - Capitol Police Parking Department of Fire, Building and Life Safety Board of Fingerprinting Department of Insurance Department of Environmental Quality Arizona Department of Financial Institutions Liquor Licenses and Control Department of Education - Special Ed Department of Revenue Board of Dental Examiners Arizona State Retirement System Board of Appraisal Secretary of State Arizona Medical Board Peace Officers Standards and Training State Board of Accountancy Department of Public Safety - Student Transportation Medical Radiologic Technology Board of Examiners Land Department Department of Racing Structural Pest Control Commission 3 3367 1876 354 250 245 137 128 126 103 100 93 70 60 54 45 41 36 32 26 23 20 20 18 15 13 12 12 11 Department of Gaming Department of Public Safety - Concealed Weapons Permit Unit Arizona Lottery Pharmacy Board Citizens Clean Elections Commission Department of Administration Board of Behavioral Health Examiners Board of Nursing Care Institution Administrators Examiners Physical Therapy Board of Chiropractic Examiners Department of Water Resources Criminal Justice Commission Board of Massage Therapy State Board for Charter Schools Acupuncture Board of Examiners Department of Education State Board of Cosmetology Board of Osteopathic Examiners Arizona Board of Occupational Therapy Examiners Board of Psychologist Examiners Arizona Department of Commerce City of Phoenix State Schools for the Deaf and the Blind 10 6 5 5 5 5 5 5 5 4 2 2 2 2 2 1 1 1 1 1 1 1 1 b. Number of Cases Filed Versus Cases Concluded: In FY 2006, the conclusion rate (defined as cases concluded divided by new cases filed) was 103.2%. Comparison of Cases Filed v. Cases Concluded 7650 7600 7598 7550 Cases 7500 7450 7400 Cases Concluded 7360 7350 7300 7250 7200 4 Cases Filed A.R.S. § 41-1092.05 calls for the setting of hearings within 60 days of a request for hearing by an agency in a “contested case” and within 60 days of an appeal of an “appealable agency action.” Although an argument could be made that such timelines inevitably result in unnecessary hearing settings, case management at the OAH discourages cases being “on hold” or riding the calendar. Generally, a matter is vacated from the first hearing setting as the result of settlement and does not take up a second hearing setting. Therefore, on the whole, statutory time limits are beneficial to the larger process of regulatory action. Disposition of Concluded Cases FY 2006 Vacated by Agency 3% Hearings 48% Vacated by ALJ 49% c. Timeline of Case Management: A.R.S. § 41-1092.05(A) and § 41-1092.08(A) and (B) contemplate a rigorous timeline to expedite hearings and final agency actions. “Appealable agency actions” (defined as actions taken by an agency without a prior hearing) are required to be set for hearing within 60 days of a request by a party. “Contested cases” (defined as proposed actions for which a hearing is required) are required to be set within 60 days of an agency request. Administrative Law Judge Decisions must be transmitted to the agencies within 20 days of the conclusion of the hearing. The agency heads are required to take final action within 30 days of receipt. Boards and Commissions generally must take final action within 5 days of their next scheduled meeting. 5 The following diagram illustrates the average timelines: Average Days Between Selected Events - Appealable Agency Actions v. Contested Cases 60.00 51.46 53.99 50.00 40.00 AAA 30.00 20.00 10.00 12.24 11.05 16.28 19.07 CC 1.64 3.03 0.00 Request for Hearing Scheduling to First to Scheduling Hearing Date Conclusion of Hearing to ALJ Decision ALJ Decision to Agency Action d. Incidence of Continuance: A single continuance in FY 2006 added an average of 48.75 days to the total length of a case. Although 70% of all continuance requests were granted in FY 2006, the OAH has developed a well-deserved reputation for discouraging “convenience” continuances in favor of those based on “good cause.” This is especially important because of the decrease in the number of Administrative Law Judges due to budget constraints. The frequency of continuance, defined as the number of continuances granted (1,025) divided by the total number of cases first scheduled (7,382), was 13.88%. The ratio of first hearing settings (7,635) to continued settings on the calendar (1,114) was 1 to 0.15. 6 The following chart illustrates the source of continuances. Comparison of Source of Continuance FY 2006 16% Continuance upon motion of non-agency party Continuance upon motion of agency 84% The following list is a breakdown of FY 2006 continued settings and their sources, by agency. AGENCY Continued Motion by nonagency party Arizona Health Care Cost Containment System Arizona Medical Board Arizona State Retirement System Board of Appraisal Board of Chiropractic Examiners Board of Dental Examiners Board of Massage Therapy Capitol Police Parking (DOA) Citizens Clean Elections Commission City of Phoenix Criminal Justice Commission Department of Administration 177 5 1 4 1 5 2 8 1 1 1 6 7 Continued Motion by agency party 36 0 0 0 0 0 0 0 0 0 0 0 Department of Commerce Department of Economic Security - CPS Department of Economic Security - DCYF Department of Education - Special Ed Department of Environmental Quality Department of Financial Institutions Department of Fire, Building and Life Safety Department of Health Services Department of Insurance Department of Public Safety - Student Transportation Department of Racing Department of Real Estate Department of Revenue Department of Water Resources Department of Weights and Measures Liquor Licenses and Control Peace Officers Standards and Training Pharmacy Board Registrar of Contractors Secretary of State State Board for Charter Schools State Board of Accountancy State Board of Nursing State Land Department 1 20 2 5 17 7 26 81 20 2 3 25 17 1 1 11 6 4 450 1 2 5 9 4 0 3 0 1 8 0 0 5 0 0 0 110 0 0 0 2 0 0 13 1 0 3 0 0 Total 932 182 The following chart reflects the number of motions to continue that were entertained in FY 2006 and the percentage granted: Client AHCCCS Arizona Medical Board Arizona State Retirement System Board of Behavioral Health Examiners Board of Appraisal Board of Dental Examiners Board of Fingerprinting Board of Massage Therapy Capitol Police Parking (DOA) Citizens Clean Elections Commission City of Phoenix Criminal Justice Commission Department of Administration Department of Economic Security - CPS Department of Economic Security - DCYF Department of Education - Special Ed Department of Environmental Quality Department of Financial Institutions Dept. of Fire, Building and Life Safety ODC OGC 83 1 2 0 3 2 1 0 5 0 0 0 0 10 0 3 2 6 17 198 5 1 1 6 3 1 1 6 1 1 1 1 21 2 4 15 8 26 8 Total Motions % Granted 281 6 3 1 9 5 2 1 11 1 1 1 1 31 2 7 17 14 43 70 83 33 100 67 60 50 100 55 100 100 100 100 68 100 29 88 57 60 Department of Gaming Department of Health Services Department of Insurance Department of Real Estate Department of Revenue Department of Weights and Measures Liquor Licenses and Control Peace Officers Standards and Training Registrar of Contractors State Board for Charter Schools State Board of Accountancy Pharmacy Board Secretary of State State Board of Nursing Department of Racing State Board of Cosmetology State Land Department 2 13 4 13 1 1 9 3 235 3 1 0 0 8 0 0 1 1 74 17 154 14 3 11 7 419 2 5 3 2 5 1 2 3 3 87 21 167 15 4 20 10 654 5 6 3 2 13 1 2 4 33 85 81 92 93 75 55 70 64 40 83 100 100 38 100 100 75 Total 429 1025 1454 70 2. Evaluation a. Results of Public Evaluation: Since November 1996, the OAH has administered an evaluation procedure. The support staff provides a copy of the evaluation before the hearing in order to encourage all participants to respond. A discussion of the evaluation form is included in a video played before each hearing, or is otherwise addressed by the Administrative Law Judge. The results are not disclosed to the Administrative Law Judge. Hearing participants place completed evaluations in locked boxes located near the hearing rooms. Those responding are asked to rate the following categories, on a scale of excellent, good, satisfactory, or poor: 1. Attentiveness of the Administrative Law Judge 2. Effectiveness in explaining the hearing process 3. Administrative Law Judge’s use of clear and neutral language 4. Impartiality 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 9 The results indicate that satisfaction is high among all groups, with those responding rating the OAH excellent to good in 92.29% to 97.29% of responses. All Responses FY 2006 96.88% 97.29% 96.51% 95.23% 94.70% 95.96% 92.29% 94.85% 94.64% Percentage Responses EXCELLENT/GOOD AVERAGE POOR 6.80% 2.48% 2.28% 2.59% 3.11% 3.69% 0.63% 0.42% 0.90% 1.66% 1.61% 1 2 3 4 4.38% 3.92% 3.04% 0.77% 1.44% 1.00% 0.90% 5 6 7 8 9 QUESTIONS An analysis of the unrepresented parties indicates that even among this most vulnerable group, the OAH is seen to be functioning extremely well. Unrepresented Responses FY 2006 900 800 700 600 500 400 300 200 100 0 Excellent Good Average 10 9 st io Q ue st io n n 8 7 Q ue st io Q ue Q ue st io n n 6 5 n 4 Q ue st io n 3 st io Q ue st io n 2 n Q ue st io Q ue Q ue st io n 1 Poor H ea lt h C ar Ar e C iz os on t a Co Bo St nt ar at ai d n e of R me et Be ire nt S ha vio Bo me yst n Bo ral ard t S em Ci He of ys a tiz r t d en B o alt Ap em s C oar f De h E pra le d D an of nt a xam isal ep D art De El e Ma l Ex ine ep m s a r ar en par ct io sag mi s tm t o tm ns e ne e T r f e D nt Ec nt o Com he s ep of on f r ar Ec om Ad mis apy t D ep De me on ic min sio n o S ar p nt i tm art of mic ecu stra en me E Se rit tio t o nt nvi cu y - n f F of ron rit C PS ire F m y , B ina en - D C t n a ui ld ci a l Q YF in l D ep De g a Ins ual i ar pa nd ti tu ty tm rt t en me Lif e i ons S D t o nt ep f H of afe De art ea Ga ty pa me l th m nt S ing rt D ep D men of erv ar ep t o Ins ice tm a ur s r f Li ent tme Rea anc qu o n l e or f W t o Es Li at f R tat c e e e St e at Re ns r R ven es es u e g Bo ist a o e a ra n ur St rd f r o d C ces at or f C on e Bo Ch ont trol a ar ra W St rd ter cto S r at at of er e A ch s Q Bo cco oo ua ar un ls li ty d o ta Ap f N nc pe urs y al in s Bo g ar d Ar iz on a b. Incidence of Rehearing and Appeal: Rehearings are permitted pursuant to A.R.S. § 41-1092.09 under certain conditions. In FY 2006, the rehearing rate (defined as rehearings scheduled divided by cases heard) was 1.5%. Appeals to Superior Court are provided for pursuant to A.R.S. § 41-1092.08(H). In FY 2006, the judicial appeal rate (defined as judicial appeals taken divided by cases decided on the merits) was 3.7%. As reflected in the following diagram, rehearings and judicial appeals in FY 2006 were relatively rare. Both were concentrated at the Registrar of Contractors. Registrar of Contractors cases are primarily contests between two private litigants: homeowner versus contractor; and contractor versus subcontractor. Judicial Appeals and Rehearings FY 2006 70 60 64 50 40 30 20 0 16 10 4 1 1 1 2 1 1 1 01 1 11 3 1 4 1 3 2 7 1 1 01 Rehearings Appeals 1 2 2 1 IV. Acceptance of Administrative Law Judge Decisions by Agencies 1. Agency Action Agency acceptance of the Administrative Law Judge Decisions is very high. 84.68% of all decisions acted upon by the agencies were accepted without modification. Agency acceptance was 91.07% if viewed from the vantage point of acceptance of Findings of Fact and Conclusions of Law, the core function of the Administrative Law Judge. 50.54% of modifications made by the agencies were in the Recommended Order (penalty portion). Amended Findings/Conclusions of Law only 6.39% Rejected 2.40% Amended Order only 6.53% Accepted without Modification 84.68% 12 The following chart reports the number of cases in the various categories of agency response. 2500 2360 2000 1500 1000 182 67 Amended Findings/Conclusions of Law only Accepted without Modification Amended Order only 0 178 Rejected 500 The following chart reports the breakdown of agency response by agency. Included also are the cases which became moot before agency action; cases which were subsequently certified by the OAH due to agency inaction; or cases which were not subject to agency modification or rejection by statute. This chart further illustrates that modifications and rejections are few relative to the decisions accepted. Accept Acupuncture Bd. of Ex. AHCCCS Arizona Lottery Arizona Medical Board Arizona Retirement System Board of Accountancy Board of Appraisal Bd. for Charter Schools Bd. of Dental Examiners Bd. of Massage Therapy Board of Nursing Bd. Osteopathic Examiners Capitol Police Parking (DOA) Citizens Clean Elections Chiropractic Bd. Criminal Justice Comm. Dept. of Administration 1 947 3 6 12 6 7 0 5 3 12 0 102 2 3 1 0 Amend Amend Reject Order Findings 0 0 0 0 48 48 0 0 0 2 2 0 1 0 0 4 0 0 3 3 0 3 0 0 1 20 1 1 0 0 4 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 13 Certified Moot Final 0 6 0 0 2 0 0 0 0 0 0 1 0 1 0 0 0 0 3 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Total 1 1052 3 10 16 10 13 3 27 4 16 1 102 3 4 1 0 DES - CPS 101 DES - DCYF 1 Dept. of Education 1 Dept. of Environ. Quality 4 Dept. Financial Institutions 6 Dept. Fire, Bldg., Life Safety 60 Dept. of Gaming 5 Dept. of Health Services 169 Dept. of Insurance 20 Dept. of Liquor Lic./Control 10 DPS - BUS 8 Dept. of Racing 6 Dept. of Real Estate 69 Dept. of Revenue 0 Land Department 4 Medical Radiological Tech Bd.7 Nursing Care Institution 3 Peace Officers Stand/Training 9 Pharmacy Board 0 Physical Therapy 3 Registrar of Contractors 751 Secretary of State 4 Structural Pest Control Com. 9 Water Quality Appls. Bd 0 Water Resources 0 Weights and Measures 0 0 0 0 0 3 0 0 3 0 3 1 0 40 0 0 0 0 0 1 0 109 1 1 0 0 0 5 0 0 0 0 0 0 3 0 0 0 0 3 0 0 2 0 0 0 0 92 0 0 0 0 0 1 0 0 0 0 0 0 1 0 0 1 0 4 0 0 0 0 0 0 0 9 0 1 0 1 0 3 0 0 0 0 7 0 1 24 3 0 1 2 0 1 0 0 0 1 0 20 1 0 1 0 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 30 0 0 0 0 0 0 0 2 0 0 0 0 0 0 0 0 0 0 30 0 0 0 0 0 0 0 0 0 0 0 0 110 1 3 4 9 67 5 177 44 16 10 7 118 30 5 9 3 9 2 3 1011 6 11 1 1 2 TOTAL 182 178 67 77 34 32 2930 2360 In FY 2006, Administrative Law Judges rendered decisions that were contrary in whole or contrary in part to agencies’ original positions in 15% of cases. Agency acceptance of contrary decisions was high at 86%. Recommendations Contrary to Original Agency Action FY 2006 ALJ Recommendation Contrary in Whole or in Part 15% ALJ Recommendation Affirms 85% 14 Agency Response to Contrary Recommendations FY 2006 140 120 119 Cases 100 80 60 49 40 31 23 20 0 Agency Accepts Contrary Recommendation 53.6% Agency Amends Findings Accepts Order 22.07% Agency Amends Order Accepts Findings of Fact/Law 10.36% Agency Rejects Contrary Recommendation 13.96% The following chart reports the breakdown of agency responses to contrary decisions. Client Accept Amend (order) AHCCCS Arizona Medical Board Arizona State Retirement System Board of Accountancy Board of Appraisal Board for Charter Schools Board of Massage Therapy Board of Nursing Board of Chiropractic Examiners Board of Dental Examiners Department of Administration DES - CPS Department of Environmental Quality Dept. of Financial Institutions Dept. of Fire, Building and Life Safety Department of Health Services Department of Insurance DPS - BUS Department of Racing Department of Real Estate Department of Revenue Liquor Licenses and Control Medical Radiologic Technology Board Osteopathic Board of Examiners Peace Officers Standards and Training Registrar of Contractors Secretary of State Water Quality Appeals Board 53 1 1 1 2 0 1 1 3 1 1 15 1 0 11 8 1 2 2 7 0 0 0 0 1 5 1 0 1 0 0 1 0 1 1 0 0 1 0 0 0 2 0 0 0 1 0 40 0 1 0 0 0 0 0 0 12 0 0 0 2 0 0 0 0 1 0 3 0 0 0 1 0 0 0 3 0 0 1 0 0 0 0 0 22 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 7 0 0 0 0 0 1 0 0 TOTAL 119 49 23 31 15 Amend (findings) Reject 2. Agency Inaction With Subsequent OAH Certification of Finality Beginning August 21, 1998, the OAH was required to certify the Administrative Law Judge Decision as the final administrative decision if the OAH had not received the agency, board or commission’s action accepting, modifying or rejecting the recommended decision within 30 days of transmission. Special rules apply if the board or commission meets monthly or less frequently. See A.R.S. § 41-1092.08(D). In FY 2006, 82 Administrative Law Judge Decisions were certified by the OAH as final administrative decisions. Agency Certified Registrar of Contractors Department of Insurance Department of Fire, Building and Life Safety Arizona Health Care Cost Containment System Department of Real Estate Arizona State Retirement System Liquor Licenses and Control Department of Economic Security - CPS Secretary of State Department of Weights and Measures Department of Gaming DPS - Concealed Weapons Permit Unit Arizona State Veterans Home Arizona Board of Occupational Therapy Examiners Board of Osteopathic Examiners Pharmacy Board Board of Behavioral Health Examiners Water Quality Appeals Board Department of Racing 22 18 11 6 3 3 3 3 2 2 1 1 1 1 1 1 1 1 1 V. Motions for Change of Administrative Law Judge Granted Pursuant to A.R.S. § 41-1092.07 A.R.S. § 41-1092.01(C)(9)(b) requires that the OAH report the number of motions for change of Administrative Law Judge for bias, prejudice, personal interest or lack of necessary expertise which were filed and the number granted. In FY 2006, 14 motions were filed and no motion was granted. 16 VI. Violations of A.R.S. § 41-1009 Pursuant to A.R.S. § 41-1092.01(C)(9)(c), the OAH reports that it has no knowledge of violations of A.R.S. § 41-1009 by any agency. VII. Recommendations for Changes in the Administrative Procedures Act The regulated community has long complained about inconsistent procedures among the various agencies. The following recommendations point to the areas where uniformity or greater consistency can be accomplished: 1. Right to settlement conferences in “contested cases.” A.R.S. § 41-1092.03 provides that appellants to “appealable agency actions” be entitled to settlement conferences with an agency representative. No such right exists for “contested cases,” which include most disciplinary proceedings. Such a conference may be beneficial in expediting informal disposition of contested cases. 2. Establish uniform standards for appeal rights notice. Currently there are no standards for how, and with what degree of specificity, appeal rights to Superior Court should be communicated to parties once the agency has acted. 3. Establish uniform basis for rehearing. Parties must research the specific rules of each agency, board or commission to determine the bases for rehearing since there is little uniformity. Standardizing and recapitulating possible bases in Title 41 would make the process easier, particularly for the unrepresented. 4. Conform rehearing and appeal rules. Currently parties have 30 days from service of an agency’s final action, which is presumed after 5 days of mailing to the party’s last known address, to request a rehearing under A.R.S. § 41-1092.09(A)(1) and (C). However, under A.R.S. § 12-904(A), parties have 35 days to file an appeal to Superior Court upon service, presumed after 5 days of mailing to the party’s last known address. Conforming the time limits for requesting rehearings and filing appeals will simplify the process by eliminating varying time limits for parties to act on final orders and will allow agencies to frame the effective dates of their final orders to a single date. 17 VIII. Recommendation for Changes or Improvements in Agency Practice with Respect to the Administrative Procedures Act Recoupment of Costs for Administrative Hearings: Billed costs to non-General Fund supported agencies, boards and commissions (ISA agencies), pursuant to A.R.S. § 41-1092.01(E) and (K), could be recouped by them by extending the statutory authority found in isolated statutes to all such ISA agencies. An example of statutory authority for recoupment is found in A.R.S. § 32-128(H), which permits the Board of Technical Registration to recoup certain costs: H. On its determination that a registrant or a home inspector has violated this chapter or a rule adopted pursuant to this chapter, the board may assess the registrant or the home inspector with its reasonable costs and expenses incurred in conducting the investigation and administrative hearing. All monies collected pursuant to this subsection shall be deposited, pursuant to sections 35-146 and 35-147, in the technical registration fund established by section 32-109 and shall only be used by the board to defray its expenses in connection with disciplinary investigations and hearings. Notwithstanding section 35-143.01, these monies may be spent without legislative appropriation. To avoid any appearance of impropriety by the ISA agencies, such recoupment might be limited to settlements or to cases where the ISA agency prevails before the independent Administrative Law Judge, or only as incident to disciplinary orders. 18 Appendix Newsletters Vol Vol Vol Vol 37 38 39 40 19 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 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 Good 140 120 100 80 60 40 20 0 Q Q Excellent ue st i Q on ue 1 st i o Q ue n 2 st Q ion ue 3 st i Q on ue 4 st Q ion ue 5 st Q ion ue 6 st io Q n ue 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. This publication is available in alternative formats. The OAH is an equal opportunity employer. The Janet Napolitano Governor OAH Cliff J. Vanell Director Vol. 38 February 2006 www.azoah.com Official Newsletter of the Arizona Office of Administrative Hearings Researching Decisions on the OAH Website Cliff J. Vanell, Director Search By: case number Judge agency date range party text For an example, see 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. 2nd Quarter Statistics At A Glance Step 2. Select the Administrative Law Judge: Acceptance Rate: ALJ findings of fact and conclusions of law were accepted in 90.66% of all Administrative Law Judge Decisions acted upon by the agencies.* ALJ Decisions, including orders, were accepted without modification in 83.65% of all Administrative Law Judge Decisions acted upon by the agencies. 50% of all agency modification was of the order only (i.e. penalty assessed). Appeals to Superior Court: There were 23 appeals filed in Superior Court. Rehearings: The rehearing rate was .84%, defined as rehearings scheduled (6) over hearings concluded (710).** Completion Rate: The completion rate was 110.9%, defined as cases completed (1785) over new cases filed (1610). Step 3. Select the Registrar of Contractors: 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 52.9 days. The frequency of continuance, defined as the number of continuances granted (292) over the total number of cases first scheduled (1607), expressed as a percent, was 18.2%. The ratio of first settings (1909) to continued settings on the calendar (364) was 1 to 0.33 Dispositions: Hearings conducted: 52.5%; vacated prior to hearing: 45.4%; hearings withdrawn by the agency: 2.1%. Contrary Recommendations and Agency Response: 15.6% of Administrative Law Judge Decisions were contrary to the original agency action where the agency took a position. Agency acceptance of contrary Administrative Law Judge Decisions was 84.44%. * 3.96% of Administrative Law Judge Decisions were certified as final by 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 not included. (continued from page 1) Step 4. Select the search method and term: Example: Finding decisions written by Adminstrative Law Judge Michael L. Barth in Registrar of Contractors hearings dealing with broken tiles: Step 1. Go to www.azoah.com and scroll down to “Search Administrative Law Judge Decisions” “Full Text Searching” (continued on page 4) page 2 Administrative Law Judge Decision moot 1.06% Agency Response to Administrative Law Judge Decisions October 1, 2005 - December 31, 2005 700 Agency rejects the Administrative Law Judge Decision 2.24% 609 600 500 Administrative Law Judge Decision certified as final upon agency inaction 2.90% Agency amends order only 6.73% cases 400 300 200 Agency accepts without modification 80.34% Agency amends findings of fact/conclusions of law only 6.73% 100 51 51 17 22 8 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*, October 1 - December 31, 2005 60.00 52.41 52.32 50.00 Days 40.00 30.00 16.86 20.00 20.36 12.68 12.74 10.00 1.45 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 3.46 0.00 Request for Hearing to Scheduling Scheduling to First Hearing Date Conclusion of Hearing to ALJ Decision ALJ Decision to Agency Action 1610 Cases Filed October 1, 2005 - December 31, 2005 2ndQ 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 Banking Behavioral Health Ex. Building and Fire Safety Charter Schools Chiropractic Clean Elections Community Colleges Cosmetology Criminal Justice Dental 5 8 0 0 3 4 28 60 0 0 0 0 705 1603 0 0 7 14 0 0 7 19 0 0 0 0 0 0 8 20 1 1 30 53 1 1 0 0 1 4 0 0 0 1 0 2 22 29 2nd Q FY 2006 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 page 3 0 31 0 16 10 30 0 2 81 20 5 12 1 0 2 3 1 0 35 1 1 0 1 0 0 76 0 23 27 30 0 5 195 41 10 24 2 0 2 10 6 0 67 1 1 0 1 0 2ndQ FY 2006 5 Peace Ofc. Standards 0 Pharmacy Board 0 Physical Therapy 0 Podiatry 1 Psychologist Examiners 5 Public Safety - CW Public Safety - Trans 5 Public Safety - Adult CC 0 0 Pvt. Post. Ed. Racing 3 0 Radiation Regulatory Registrar of Contractors 416 41 Real Estate 7 Revenue School - Deaf & Blind 0 7 Secretary of State State Board of Education 0 Structural Pest Control 4 0 Technical Registration Veterans Home 0 0 Veterinary Board Water Qual. App. Bd. 0 Water Resources 0 46 Weights and Measures 14 3 0 0 1 5 8 0 0 5 0 867 169 23 0 10 0 4 0 0 0 0 2 93 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 2nd Quarter Unrepresented Responses 2nd Quarter 600 350 500 300 400 300 200 Excellent 250 Excellent Good 200 Good Average 150 Average Poor 100 Poor 0 0 Q Q Questions: 1. Attentiveness of ALJ 2. Effectiveness in explaining the hearing process 3. ALJ’s use of clear and neutral language 4. Impartiality Step 5. View the results and select a case from the list: Q ue st i Q on ue 1 st i Q on ue 2 st io n Q ue 3 st io n Q ue 4 st Q ion ue 5 st i Q on ue 6 st i Q on ue 7 st io n Q ue 8 st io n 9 50 ue st io n ue 1 st i Q on ue 2 st io n Q ue 3 st io n Q ue 4 st i o Q ue n 5 st i Q on ue 6 st io n Q ue 7 st io n Q ue 8 st io n 9 100 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 Step 6. Open the decision: (note the agency action will appear first) For more information about searching OAH decisions, visit our website at www. azoah.com This publication is available in alternative formats. The OAH is an equal opportunity employer. The Janet Napolitano Governor OAH Cliff J. Vanell Director Vol. 39 May 2006 www.azoah.com Official Newsletter of the Arizona Office of Administrative Hearings Putting Your Best Case Forward Daniel G. Martin, Administrative Law Judge In virtually every proceeding before the Office of Administrative Hearings, one of the parties will have the burden of proof. Generally speaking, it is the party asserting a claim, right, or entitlement that has the burden of proof. See Arizona Administrative Code (“A.A.C.”) R2-19-119(B)(1). In addition, the party asserting an affirmative defense to a claim (such as the application of a statute of limitations) has the burden to establish the elements of that defense. See A.A.C. R2-19-119(B)(2). The standard of proof in almost all administrative proceedings is preponderance of the evidence. See A.A.C. R2-19-119(A). A “preponderance of the evidence” is “evidence of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY (6th ed. 1990). In order to prevail, the party with the burden Director’s note: OAH is committed to fairness and making hearings accessible to all. This article is part of 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. 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 of proof must not only present sufficient evidence to convince the Administrative Law Judge that the party’s position is correct (also known as the burden of producing evidence or the burden of going forward); the party’s evidence also must be sufficient to convince the Administrative Law Judge that the party is entitled to the relief that he or she is seeking (this is known as the burden of persuasion). Given the importance of the burden of proof, one of the first issues that a party to an administrative proceeding must address is the type of evidence that he or she will present in order to establish his or her claim (or defense). The most common types of evidence are witness testimony and documentary evidence; however, there are many other forms of evidence, such as physical objects, photographs, audio and video recordings, and summary evidence (such as graphs and charts). In every proceeding, it is crucial to select the evidence that will best convey the facts of the case to the Administrative Law Judge assigned to hear the case. “Best Case” (continued on page 2) 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. 3rd Quarter Statistics At A Glance Acceptance Rate: ALJ findings of fact and conclusions of law were accepted in 91.25% of all Administrative Law Judge Decisions acted upon by the agencies.* Administrative Law Judge Decisions, including orders, were accepted without modification in 85.26% of all Administrative Law Judge Decisions acted upon by the agencies. 50% of all agency modification was of the order only (i.e. penalty assessed). Appeals to Superior Court: There were 32 appeals filed in Superior Court. Rehearings: The rehearing rate was 1.87%, defined as rehearings scheduled (14) over hearings concluded (747).** Completion Rate: The completion rate was 99.95%, defined as cases completed (1999) over new cases filed (2000). 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 3rd quarter) was 45.98 days. The frequency of continuance, defined as the number of continuances granted (187) over the total number of cases first scheduled (1914), expressed as a percent, was 9.77%. The ratio of first settings (1828) to continued settings on the calendar (240) was 1 to 0.13 When considering the type of evidence to present at hearing, a party must ask two basic questions. The first question is whether the evidence is relevant; that is, does it relate to one or more of the issues presented for hearing. The second question is whether the evidence is probative; that is, does it tend to prove a fact that is at issue in the case. If the answer to both of these questions is yes, then the evidence will most likely be admitted at hearing. However, the determination that the evidence is admissible does not end the inquiry; of perhaps equal importance is the question of how much weight the Administrative Law Judge will assign to that evidence. Dispositions: Hearings conducted: 46.2%; hearings vacated prior to hearing: 51%; hearings withdrawn by the agency: 2.8%. To illustrate this point, let us consider three scenarios Contrary Recommendations and Agency Response: arising out of the following 20.35% of Administrative Law Judge Decisions were contrary to the original agency action where the agency hypothetical licensing case: took a position. Agency acceptance of contrary AdminisJohn Smith applies for a real trative Law Judge Decisions was 89.47%. estate salesperson’s license, * 2.83% of Administrative Law Judge Decisions were certified as final by the but his application is denied OAH due to agency inaction or were rendered moot by settlement. ** Cases which were vacated or which settled on the day of hearing are not after the Department of Real included. Estate discovers that he has several criminal convictions. Mr. Smith appeals the “Best Case” Department’s decision, and his (continued from page 1) case is referred for hearing to the Office of Administrative Hearings. Previous articles in this newsletter, Mr. Smith has the burden of proof, all of which can be found on the and wants to present several Office of Administrative Hearings witnesses to testify to his honesty website, www.azoah.com, as well and good moral character. as the video, “Preparing for Hearing”, which also can be found on In the first scenario, Mr. Smith’s the website, explain in detail the witnesses do not testify directly. manner in which a party should Instead, each of them writes a present his or her case. The purpose of this article is to focus on letter of reference attesting to Mr. Smith’s honesty and good characthe type and quality of the evidence ter. The Administrative Law Judge presented, and explain how the determines that the letters are both selection of that evidence can, in relevant and probative, and admits many instances, have a direct them into evidence. Although Mr. impact on the outcome of a case. page 2 Smith has at this point presented evidence of his good character, that evidence is unlikely to be given much weight by the Administrative Law Judge because Mr. Smith’s witnesses were not subject to examination regarding the basis for their opinions, and the Administrative Law Judge was unable to observe the witnesses and make a determination as to their credibility. In short, Mr. Smith may have met his burden of producing evidence, but not his burden of persuasion. In the second scenario, Mr. Smith’s witnesses appear telephonically and testify directly to his honesty and good character. In this scenario, the quality of evidence is better than the previous scenario because, although the witnesses cannot be directly observed (thus making it more difficult for the Administrative Law Judge to assess their credibility), they are subject to examination regarding the basis for their opinions. In the third scenario, Mr. Smith’s witnesses appear in person and testify directly to his honesty and good character. In this scenario, the quality of evidence is better than each of the previous scenarios because the witnesses are subject to examination and can be directly observed by the Administrative Law Judge. If the issue of Mr. Smith’s honesty and good character turned out to be the deciding issue in his case, one can see that the quality of his evidence on that issue would be critical. Under the facts of the first scenario, Mr. Smith might very well not be successful in his appeal because the evidence regarding his “Best Case” (continued on page 4) Agency Response to Administrative Law Judge Decisions January 1, 2006 - March 31, 2006 Administrative Law Judge Decision moot 0.28% 700 Agency rejects the Administrative Law Judge Decision 2.70% 584 600 500 Administrative Law Judge Decision certified as final upon agency inaction 2.55% Agency amends order only 5.82% cases 400 300 200 Agency amends findings of fact/conclusions of law only 5.82% 100 41 41 19 Agency accepts without modification 82.84% 18 2 Administrative Law Judge Decision certified as final upon agency inaction Administrative Law Judge Decision moot Agency rejects the Administrative Law Judge Decision Agency amends order only Agency amends findings of fact/conclusions of law only Agency accepts without modification 0 Average Time Between Selected Events - Appealable Agency Actions v. Contested Cases*, January 1 - March 31, 2006 60.00 49.54 50.00 51.66 Days 40.00 30.00 20.00 20.00 13.67 11.31 9.76 10.00 1.53 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 3.68 0.00 Request for Hearing to Scheduling Scheduling to First Hearing Date Conclusion of Hearing to ALJ Decision ALJ Decision to Agency Action 2000 Cases Filed January 1, 2006 - March 31, 2006 3rdQ 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. Building and Fire Safety Charter Schools Chiropractic Clean Elections Commerce Community Colleges Cosmetology Criminal Justice Dental Economic Security 4 1 0 37 0 0 885 0 10 0 7 0 0 0 0 15 0 3 1 1 0 0 0 4 0 12 1 4 97 0 0 2498 0 24 0 26 0 0 0 1 68 1 3 5 1 0 1 2 33 0 3rd Q FY 2006 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 Peace Ofc. Standards page 3 31 0 7 16 25 70 0 2 78 22 0 15 3 0 0 7 4 0 35 1 0 0 0 0 5 107 1 29 43 45 100 0 7 273 63 10 39 5 0 2 17 10 0 102 2 1 0 1 0 19 3rdQ FY 2006 Pharmacy Board 2 5 Physical Therapy 5 5 Podiatry 0 0 Psychologist Examiners 0 1 Public Safety - CW 0 5 Public Safety - Trans 3 11 Public Safety - Adult CC 0 0 Pvt. Post. Ed. 0 0 Racing 6 11 Radiation Regulatory 0 0 Registrar of Contractors 564 1433 Real Estate 51 220 Revenue 10 33 School - Deaf & Blind 0 0 Secretary of State 11 21 State Board of Education 0 0 Structural Pest Control 5 9 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 54 147 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 3rd Quarter Unrepresented Responses 3rd Quarter 250 350 300 250 200 150 100 50 0 Excellent 200 Good 150 Good Average 100 Average Poor Excellent Poor 50 9 Q ue s tio n 8 7 Q ue s tio n 6 Q ue s tio n 5 tio n ue s Q Q ue s tio n 4 3 Q ue s tio n 2 Q ue s tio n 1 tio n tio n ue s Q ue s Q 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 5 ue st io n Q 6 ue st io n Q 7 ue st io n Q 8 ue st io n 9 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 character, while admissible, was not entitled to receive much weight. On the other hand, Mr. Smith might very well prevail under the facts of the third scenario, because he presented his evidence in such a way that it could be afforded significant weight. The principal that is illustrated by the above hypothetical has application to many types of evidence. In the case of documentary evidence, for example, the general rule is to bring the original document if there is any chance that the authenticity of the document might be subject to challenge. The original does not necessarily need to be made an exhibit, but it can be shown to the Administrative Law Judge and the opposing party in the event of a dispute. In the case of official documents (such as court records or police reports), certified copies bearing the stamp of the issuing court or agency are preferable to ordinary copies. In the case of photographs, originals are preferable to copies, and color copies are preferable to black and white copies. Effective preparation is critical to success in administrative proceedings, and one of the key components to effective preparation is ensuring that the evidence a party presents at hearing is not only relevant and probative, but also persuasive. As can be seen from the above examples, the type of evidence a party chooses to present may often have a direct impact on the outcome of the case. Therefore, careful thought should be given in advance of the hearing to precisely determine what evidence the party intends to offer, and whether that evidence puts the party’s best case forward. This publication is available in alternative formats. The OAH is an equal opportunity employer. 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.