October 2016 Bar Bulletin
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October 2016 Bar Bulletin

Perceptions in Administrative Hearings:
KCBA Survey under Way


Administrative law is a crucial part of our quasi-judicial system. Hearings are conducted impartially and informally to better enable parties with affordable and accessible means to quickly resolve disputes, or to obtain benefits, services or relief.

With some exceptions (most notably the Department of Revenue and the Board of Industrial Insurance Appeals), administrative hearings in Washington are governed by the Administrative Procedure Act, which created the Office of Administrative Hearings (OAH). These statutes were enacted in 1981 and amended in the late 1990s to promote consistency with the federal system and with the administrative procedures of other states.

Generally, administrative hearings are conducted under the executive authority of agency directors to implement their enabling legislation. By statute, the presiding officer at an administrative hearing is the agency head or his/her designee, unless the initial hearing is conducted by an ALJ. Whether an ALJ is employed by an agency or by OAH, his/her findings of fact and conclusions of law are subject to review and modification by the affected agency. The final agency decision is then subject to judicial review.

Any party “aggrieved” by an agency action, or whose professional or other license is threatened by suspension or revocation through the issuance of an agency statement of charges, has the right to an administrative hearing before an ALJ. That party’s substantive and procedural due process rights are defined by the APA, which is intended to grant greater protections than those offered by the state constitution alone.

Under the APA, administrative hearings are meant to be an expeditious, inexpensive and informal means of resolving disputes with state agencies, with an emphasis on fairness and accessibility to unrepresented persons. An “appearance of fairness” doctrine has evolved to require that such hearings must not only be fair in fact, but must also be seen to be fair by the affected parties. This doctrine is grounded in statutory, not constitutional, rights.

Parties adversely affected by agency actions must exhaust their administrative remedies under the APA before they can seek judicial review, unless they can prove that to do so would be futile.

Originally, most administrative hearings were intended to be conducted by ALJs from the OAH with each ALJ assigned to an agency according to his or her expertise. A revolving fund was created to support the OAH, with contributions deducted for OAH services from each agency’s budget appropriations.

Over the years, agencies have opted more and more to resolve agency/party disputes in-house, employing their own ALJs. Moreover, the OAH is no longer supported by the revolving fund. In practice, agencies not employing their own ALJs now enter into contracts with the OAH for the services of its ALJs. Consequently, ALJs are the direct subordinates of the agencies whose actions they are to adjudicate. If ALJs are employed by the OAH, the agency is their client.

The bar’s initial interest in this issue began after litigation resulted a couple years ago when an ALJ assigned to the office of the State Insurance Commissioner received a negative performance evaluation for ruling against that agency in one of her decisions. Questions were raised over the independence of ALJs as judicial officers.

Legislation was introduced in Olympia and hearings were held to explore the issues, with no ultimate passage. Then early this summer, the State Auditor’s Office published a study that found administrative hearings before the umbrella OAH are generally perceived as fair by survey respondents; observers, however, raised questions about the methodology used to obtain those results.

As part of independent research into this issue by a subcommittee of KCBA’s Public Policy Committee, the subcommittee has developed a short Administrative Hearings Fairness Survey, which is being widely distributed to attorneys and judges throughout King County. The survey is designed to learn practitioners’ views of the fairness afforded to clients represented at administrative hearings — whether that is a claimant, taxpayer, license holder, business, employer, government agency or other entity.

Although the survey asks questions about the practitioner’s perspective, the survey is not inviting attorneys to reveal client confidences. All responses are anonymous and confidential.

The survey is available online at www.kcba.org/publicpolicy and will remain open until Friday, October 21. The subcommittee will then analyze the results, identify areas for further study, and develop recommendations to the KCBA Board of Trustees for reforms, if needed.

Special thanks go to subcommittee leaders Elizabeth René, Seth Rosenberg and Joy Lockerby, who have spearheaded our work so far and prepared the background information in this article. They welcome interested KCBA members to join them in this effort. To participate, please contact KCBA Executive Director Andrew Prazuch by email (andrewp@kcba.org).

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