A Prosecutor’s Handbook for Administrative Hearings

First Edition

................................................

................................................ .............................................................................

.............................................................................................. .............................................................................................

................................................... ...............................................................

................................................................................. ......................................................................................

...................................................................... ................................................................................

.................................................................... ...........................................

...................................................................................... ....................................

..............................................................................................................................

.......................................................................... ......................................................

....................................................................................................................................................................

...................................................................................................................................................................................................

..........................................................................................................................................................................................................

...................................................................................................................................................................................................

....................................................................................................................

.................................................................................................................................................

...................................................

...........................................................................................................

............................................................................. 1

A Prosecutor’s Handbookfor Administrative Hearings Table of Contents Chapter I Introduction – The Role of Administrative Hearings 3

Administrative Hearings and Due Process 4 The Evidentiary Standard 5 Legal Authority 5

Statutes 6 Oklahoma Administrative Code 6 Internal Rules and Policy 7 Staff Guidance 7

Hearing Participants 7 Prosecutor/Advocate 7 Hearing Officer 8 Respondent/Appellant 8 Appellant’s Advocate/Representative 8 Witness(es) 8

Types of Administrative Hearings Involving DHS 8 Employment Pre-Termination 8 Child Care Services 9 Restricted Registry 9 Community Worker Registry 10 Merit Protection 10 Adoption 11 Foster Care 11

FAQs 12 Chapter II Preparing the Case 13

Preparation 13 Organization 13 Anticipation 14 Know Your Legal Authority 14 Find the Legal Authority and Understand It 15 Be Ready to Prove the Elements 16 Gather Your Evidence 16

Employment/Pre-Termination Hearings 16 Child Care License Denial or Revocation Hearings 17 Restricted Registry Hearings 17 Community Workers Registry 17 Adoption Assistance Dispute 17 Foster Home Closures or Decisions to Remove 17 1

..................................................................................................

...............................................................................................................................................

..........................................................................................................................

.............................................................................................................................................

.........................................................................................................................

......................................................................................................................................................................................................................

.........................................................................................................................................................

..........................................................................................................................................................................................................

...........................................................................................................................................

..............................................................................................

...........................................................................................................................................................

...............................................................................................................................

.......................................................................................................................................................

..........................................................................................................................................

....................................................................................................................................

.......................................................................................................

...................................................................................................................

..........................................................................................................

...............................................................................................................................................................................

...........................................................................................................................

...................................................................................................................................................................................................................................................

.................................................................................................................... 2

Table of Contents Continued Prepare and Organize Your Documentation 18 Identify and Organize Your Witnesses 19

Witness Interviews 19 Witness Statements 23

Organize Your Exhibits and Witnesses 23 Identify Weaknesses 24

Hearing Notebook 25 Handling Newly Discovered Evidence 26 Evidence Sufficiency 26 The Opening Statement and Closing Argument 27

Opening Statement 27 Closing Argument 28 Rebuttal Argument 29

Scheduling the Hearing 30 Ex Parte Communications 31 FAQs 32 Bits of Wisdom 33

Chapter III Prosecuting the Case / Conducting the Hearing 34

Creating the Record 35 Invoking the Rule of Sequestration 36 Opening Statements and Questioning Witnesses 37 Witness Cross-Examination 37 Introducing Exhibits 38 Handling Surprises at the Hearing 38 An Advocate’s Responsibilities 39 Holding the Record Open 39 Decorum at the Hearing 40

Cell Phones / Smart Phones 40 Proper Dress 40 Proper Language 40 Addressing the Participants 40 Proper Behavior / Body Language 41 Respect for All Participants 41 Punctuality 41

Subsequent Steps After the Administrative Hearing 41 Decision of the Hearing Officer 41 Notification of the Decision 42 Appeal of the Decision 43

FAQs 44 Bits of Wisdom 45 One Lawyer’s Top Ten Administrative Hearing Tips 46

Chapter IV Special or Unique Situations 47

Settlement Negotiations 47 Settlement Conferences 47

Conclusion 48 2

Chapter I

Introduction

Topics covered in this chapter: The Role of Administrative Hearings

Administrative Hearings and Due Process

The Evidentiary Standard

Legal Autahority

Hearing Participants

Types of Administrative Hearings Involving DHS

3

A Prosecutor’s Handbook for Administrative Hearings (First Edition) The purpose of this Handbook is to make what can seem to be a complex and intimidating process into something that is understandable and less daunting, particularly for those new to the idea of administrative law. What follows is, in effect, a brief tour through the administrative process. You should get a better understanding of the concept we call administrative law; what divisions and programs within the agency have an administrative hearing process (and there are many); how you should prepare your administrative law case; and how you will actually prosecute an administrative hearing. The materials covered in this handbook are typically contained within at least one entire semester of law school, but we have done our best to dilute the concepts and information down into a manageable amount that will, at least, provide some assistance as you fulfill your role as an administrative advocate on behalf of DHS.

Administrative Procedures Act When it comes to administrative hearings, most stateagencies are governed by the procedural requirementsembodied within Article II of the APA. The Department ofHuman Services, however, is specifically exempt from theprovisions of Article II. As for Article I of the APA, it addresses the development andadoption of formal administrative rules which DHS mustfollow but its contents are not germane to this handbook.

I. Introduction - The Role of Administrative Hearings At its most basic level, every administrative hearing fulfills a quasi-judicial function that provides an individual or even a business the opportunity to protest action taken by the executive branch of any federal, state, or local government (e.g., employment termination, license revocation, benefit denial). Administrative hearings are seen as an interim mechanism intended to preserve someone’s rights without forcing them to run to the courthouse for relief.

The hearings themselves can vary significantly in both complexity and purpose. Within DHS alone, even veteran employees would be surprised at the variety of administrative hearings occurring within the agency. On a weekly or even daily basis, those hearings that take place deal with:

• Employment Pre-termination • Restricted Registry • Child Care Licensing • Foster Home Appeals • Community Services Worker Registry • Benefit Appeals • Child Support Determinations

Before an Administrative Hearing can even occur, it must first be authorized through law or policy. In other words, some underlying, legal authority must exist which specifically permits an agency to take some kind of action against an individual’s or business’s rights. Legal authority must also exist which then establishes the procedures by which the administrative hearing will be conducted.

Administrative Hearings and Due Process

One of the basic tenets upon which our state and federal governments are based is the concept that before certain civil rights or property rights may be taken away or restricted, the government must demonstrate why the taking is proper. Additionally, the individual affected is to be provided an opportunity to explain why the taking or restriction is improper. This is what is meant by “due process.” Administrative Hearings are one vehicle by which a party’s “due process” rights are protected.

Generally speaking, the more significant the deprivation, the greater the amount of due process that must be provided to ensure the right is protected. Procedural due process1 embodies the steps taken by a government when it seeks to deprive a party of life, liberty, or property. This concept is grounded in both the Oklahoma and the U.S. Constitutions. And courts have determined that the amount of due process provided generally depends upon the importance of the right at issue (i.e., imprisonment v. loss of employment) and the extent of the deprivation (temporary v. permanent).

Again, the essence of procedural due process is broken down into two concepts; notice and the opportunity to be heard. Notice means sufficient advance warning of the agency’s intent to impact an individual’s or entity’s life, liberty, or property interest. The opportunity to be heard provides an individual or an entity the chance to demonstrate to an impartial judge why the proposed action is improper and should not be allowed to occur. The impartial judge called upon to render a decision in these circumstances is most often referred to as a “Hearing Officer” or an “Administrative Law Judge.”

In accordance with both law and policy, the Oklahoma Department of Human Services is given the authority, as an agent of the government, to take away or otherwise impact an individual’s or business’s property interest. For example,

• A classified employee has a property interest in that individual’s job with the state • A day-care owner has a property interest in operating a day care facility • Developmentally disabled Oklahomans have a liberty interest in receiving waivered services

to ensure they remain out of institutions and in the community

1Although a detailed explanation is beyond the scope of this handbook, “Due Process,” as a constitutionally protected right, is actually broken down into two distinctly separate concepts; procedural due process and substantive due process. These constitutionally protected rights extend further by allowing a classified employee the opportunity to appeal a termination of employment to the Merit Protection Commission. This is explained in more detail later.

4

When DHS acts with the intent of impacting someone’s property or liberty interest, it must offer them the opportunity to have an administrative hearing in order to satisfy the constitutionally preserved rights to due process. In this context, administrative hearings are considered “quasi-judicial.” Though they are, almost without exception, less formal than courtroom trials, administrative hearings still serve as a “trial-like” vehicle whose purpose is to protect a party’s rights. Hence, the terms, “trial-like” and “quasi-judicial” are used because the rules governing procedure and submission of evidence and testimony in an administrative hearing are greatly relaxed. The quasi-judicial power of an administrative body is wielded most often by the hearing officer, an administrative law judge, a board, or other similar body. The decisions they render are legally binding upon the parties; however, quite frequently, the decision is subject to appeal up to the agency Director or a traditional, district or trial court.

The Evidentiary Standard Any time something must be proved, whether in a traditional trial court or at an administrative hearing, there exists a minimal threshold that must be overcome to sufficiently convince the “trier of fact” (e.g., the judge, jury, or hearing officer). This is the “evidentiary standard.” The greater the interest that is threatened the higher the evidentiary threshold. Most people are familiar with the evidentiary standard of “beyond a reasonable doubt” used in criminal cases. Because the government is looking to take an individual’s liberty or even life, the evidentiary onus of “beyond a reasonable doubt” is the most exacting and difficult standard to prove. In descending order of the amount of proof needed to satisfy the trier of fact, the remaining evidentiary standards consist of; 1) clear and convincing proof, 2) by a preponderance of the evidence, and 3) reasonable grounds. As an advocate in an administrative hearing, it is your responsibility to present the strongest case possible. Therefore, from a practical standpoint, only the Hearing Officer need be aware of the evidentiary standard and how it should be applied. Simply stated, if you have questions about the sufficiency or the adequacy of the evidence supporting your case, contact DHS Legal Services (or the program supervisor who initiated the administrative action) for advice.

Legal Authority A wide variety of legal sources govern both the hearing process and the prosecution of administrative matters. It is important that you, an active participant in the administrative hearing process, have more than a passing familiarity with the body of rules and law impacting the type of hearing in which you will participate. There is a vast body of legal authority that governs and guides the administration and prosecution of these hearings. Generally speaking, in the order of precedence and importance, this legal authority includes: 1. State and federal constitutions 2. State and federal laws 3. Promulgated administrative rules 4. Agency procedures and policies 5. Instructions and guidance for staff

5

Some, but not all, of the broad authority under which your administrative hearings will operate are outlined in some detail below:

Statutes These are the laws of the state that are passed by the Legislature and signed by the Governor. Statutes serve as the underlying authority for an administrative action and provide the basis upon which the rules promulgated into the Oklahoma Administrative Code (OAC) are developed and implemented (see below). Some statutes are specific to DHS actions alone while others are applicable across agencies and even to every business entity and individual within the state. For example, these include: 1. Oklahoma Personnel Act – Title 74 O.S. Ch.27A 2. Employment Security Act – Title 40 O.S. Ch. 1 3. Community Services Worker Registry – Title 56 O.S. §1025.3 4. Child Care Licensing and Registry – Title 10 O.S. Ch. 18

One example of statutory authority heavily reliant on the administrative process is the Oklahoma Personnel Act (OPA). The OPA contains most of the laws that relate to employment with the state. The statutes within the OPA create the classified employment system, provide for a progressive discipline system for classified employees, and provide rights for classified employees to appeal disciplinary action or discharges to the Merit Protection Commission. As stated in the OPA, its purpose is to protect the public from improper use of authority and to protect public officials and employees from unwarranted assaults on their integrity (i.e., protect their rights). From an administrative perspective, implementing the obligations of the OPA takes up a significant amount of time and resources within the agency.

Oklahoma Administrative Code Agency rules exist to add much needed details to the statutes passed by our Legislature, and these rules will be located in the Oklahoma Administrative Code (OAC). Rules carry the same legal weight as statutes that are drafted and debated by the legislature. Like statutes, rules within the OAC go through a formal adoption process. Administrative rules cannot be modified or interpreted, amended, implemented, or repealed by agency action alone. Any change requires approval from both the Governor’s office and the Legislature. Examples of rules applicable to DHS and found within the OAC are: 1. Rules guiding the Department of Human Services itself are found in Title 340 of the OAC; 2. Rules guiding the Oklahoma Healthcare Authority are found in Title 317 of the OAC; 3. Merit Protection Commission rules are promulgated by the Merit Protection Commission

(MPC) and can be found in Title 455 of the OAC. These rules dictate how employees appeal to the MPC and guide the course of conduct at MPC hearings; and

4. Merit System of Personnel Administration rules are promulgated by the Office of Management and Enterprise Services (OMES). They are found in Title 260 of the OAC. These rules are often referred to as the “Merit Rules,” and they provide additional details for administration of the Oklahoma Personnel Act.

6

Internal Procedures and Policy Procedures and policy are the guidelines under which an agency operates on a day to day basis. These are developed internally and are intended to impact only agency operations. Enacting or modifying internal regulations and policy is a more simple process than changing agency rules. Typically, policy can be created or revised by submitting them to the Director of the agency or the Director’s designate for approval.

Staff Guidance Numbered Memoranda and Instructions to Staff serve as internal guidance developed by the agency to assist staff as they apply rules and policy. These function without the authority of law, but serve the important purpose of establishing agency practice. This authority can be modified at the division level and does not require the Director’s approval.

Always be aware, any legal authority can be modified or even revoked. When relying upon a statute, rule, policy, or staff guidance for your administrative hearing, always ensure you are using the version of authority that was in effect at the time the violation or act occurred.

Hearing Participants While hearings themselves may vary in complexity, the participants are generally the same.

Prosecutor / Advocate If you are reading this Handbook, the chances are your role in the administrative process is to serve as the advocate. This Handbook is specifically written to assist you in your efforts to serve as the DHS representative at the administrative hearing. It is your responsibility to familiarize yourself with the facts of the case, prepare it for prosecution, and with the use of witnesses and exhibits present that case to the Hearing Officer. It is your responsibility to effectively marshal the relevant evidence, present effective witnesses, and bring forth the strongest case possible.

It may seem commonsense to mention, but an advocateshould never serve as the final decision maker when determining the appropriateness of discharging aclassified employee.

7

Hearing Officer All administrative hearings are presided over by a Hearing Officer. In some instances, particularly for those cases that are more complex, the hearing officer carries the title of Administrative Law Judge (ALJ). Most typically, an ALJ is an attorney possessing expertise in the law on which the hearing is based (e.g., employment law, Medicaid law). A hearing officer, however, need not be an attorney. Quite often, the hearing officer is an individual with some expertise or specific knowledge in the subject matter of the hearing. Whether ALJ or Hearing Officer, this is the individual who is charged with ruling on the merits of the case and controlling the procedure of the hearing, including making decisions on the admission of what evidence may be presented.

Respondent/Appellant This is the appealing party - the person whose rights will be impacted by the decision or action taken after the administrative hearing. They, too, have the right to present evidence and witnesses on their behalf.

Appellant’s Advocate/Representative At most administrative hearings the Respondent is entitled to have an advocate or a representative assist or act on that person’s behalf. This advocate does not necessarily need to be an attorney. It can be a friend, a family member, or a fellow employee. Depending on the rules of the hearing, that advocate may be permitted to question witnesses or present arguments on behalf of the Respondent.

Witness(es) In the vast majority of administrative hearings, each side in the hearing has the right to present witnesses in order to elicit helpful information and establish the facts of the case. Statements or other information relevant to the proceeding are provided by witnesses before the Hearing Officer in order to assist in the decision-making process.

Types of Administrative Hearings involving DHS Any permanent, classified employee, after being advised of both the agency’s intent to seek termination and the facts it intends to rely on in support of termination, is entitled to a Pre­termination hearing. The Pre-termination hearing is a constitutionally protected right2 for any classified employee and is embodied in state statute through the Oklahoma Personnel Act. The hearing’s purpose is to determine whether reasonable grounds exist to support the charges of misconduct against the employee and, if so, whether those grounds are sufficient to support the significant step of termination. From the perspective of the employee, the Pre-termination hearing is an opportunity to defend one’s self and tell that individual’s side of the story. The burden falls upon the agency to present sufficient witnesses and exhibits to support the recommendation of termination. Leading the effort on behalf of the agency is an individual tasked with preparing and

2Although a detailed explanation is beyond the scope of this handbook, “Due Process,” as a constitutionally protected right, is actually broken down into two distinctly separate concepts; procedural due process and substantive due process.

8

presenting the case to terminate the employee. In other words, that individual is the “advocate.” Once the hearing is concluded, the hearing officer submits a recommendation whether termination is appropriate. The individual senior manager with authority to terminate the employee then considers the hearing officer’s recommendation when making the final decision whether the employee should, in fact, be terminated. All of this must occur within a fairly tight timetable. The decision to support or reject the recommendation of termination must occur within 10 business days of the hearing. The employee is notified of the decision and is provided a Final Notice of Disciplinary Action. If the decision in the Notice is adverse, the employee is also provided information advising how to appeal to the Merit Protection Commission. The employee then has 20 days to file an appeal with the MPC.

A Permanent Classified Employee means a classifiedservice employee who has acquired permanent statusin accordance with the Oklahoma Personnel Act… and who has the right to appeal involuntary demotion,suspension without pay, and discharge to the MeritProtection Commission.

Child Care Services Child care licensing hearings are provided when DHS takes steps adversely impacting the license of a child care facility. The operator of a child care program can request an administrative hearing if a license application is denied, a license is revoked, or the DHS Child Care Licensing division has issued an emergency order mandating the closure of a licensed child care facility. Anyone with a denial or revocation of a child care license is also subject to placement on the Restricted Registry (see below).

Restricted Registry Three categories of individuals are subject to placement on the Restricted Registry: 1. Individuals with a substantiated finding of abuse or neglect of a child while in the care of a

licensed child care program; 2. Individuals who have had their program license revoked or denied; and 3. Individuals who have a felony conviction for specified crimes.

Restricted Registry cases are first reviewed by a Restricted Registry Review Committee, and a vote is taken by the members whether or not to place an individual on the registry. If a decision is made that placement is appropriate, that person is notified of the committee’s decision and simultaneously advised of both the right to contest the Committee’s determination and what administrative procedures will be followed.

9

Community Worker Registry The Community Services Worker Registry can impact those individuals employed by private agencies providing direct care services to individuals who are developmentally disabled or receive home health services through the Medicaid Advantage Waiver program. Any direct care staff, whose actions result in a finding of abuse, neglect, financial exploitation or financial neglect of a service recipient can be placed on the Community Services Worker Registry and will be prohibited from future employment in that field. Prior to placement on the Registry, and upon the request of the individual worker, an administrative evidentiary hearing is conducted wherein the Department has the burden to prove by clear and convincing evidence that the worker’s name should be added to the Community Services Worker Registry.

The Executive Director of the Merit Protection Commission (MPC) is authorized to issue ordersor dismissal in cases presented to the MPC, enterprocedural orders, consolidate related cases, grantcontinuances, and grant a party leave to file withthe MPC.

Merit Protection Merit Protection Commission (MPC) intervenes in three employment-related administrative matters. MPC hearings are presided over by an administrative law judge (ALJ). The ALJ is typically a private, practicing attorney contracted by the State. Hearings involving the MPC tend to be more formal, particularly when compared to Pre-termination hearings conducted within the agency. Subsequent to a decision by the MPC, the losing party is entitled to file an appeal with the District Court. Those employment-related matters handled by the MPC include:

1. Adverse Action Appeal - A classified employee may appeal any adverse employment action resulting in a loss of pay; e.g., demotion, suspension without pay, or discharge. The employing agency carries the burden of proving the charges of misconduct against the employee. As soon as a matter is presented to the MPC for consideration, DHS Legal Services takes over prosecution of the case. Once presented to the MPC, any appeal involving an adverse employment action is automatically set for a settlement negotiation conference. The negotiation conference requires the agency manager who prosecuted the case to attend and act as spokesperson for the agency. The agency manager must also possess enough authority to settle the case.

10

Chapter II

Preparing the Case

Topics covered in this chapter: Preparation

Organization

Anticipation

Know Your Legal Authority

Find the Legal Authority and Understand It

Be Ready to Prove the Elements

Gather Your Evidence

Prepare and Organize Your Documentation

Identify and Organize Your Witnesses

Organize Your Exhibits and Witnesses

Hearing Notebook

Handling Newly Discovered Evidence

Evidence Sufficiency

The Opening Statement and Closing Argument

Scheduling the Hearing

Ex Parte Communications

FAQs

Bits of Wisdom

2. Alleged Violation Appeal - An employee is also entitled to pursue redress if that person feels a violation of the Oklahoma Personnel Act or Merit Rules has occurred. Unlike an Adverse Action Appeal, these cases are first investigated by MPC, which decides if there is sufficient evidence of a violation. Once past this determination, the Executive Director of the MPC is authorized to appoint an administrative hearing officer to hear the case. In the event a violation is found to have occurred, the hearing officer may order the employer to take appropriate corrective action. A violation of rights appeal places the burden of proof upon the employee. The Merit Rules allow the MPC to only accept alleged violation appeals regarding promotional issues, pay movement mechanisms, compensation, oral reprimands, written reprimands, leave issues, and employee service rating systems if such issues have first been addressed through an internal agency grievance. Alleged violation appeals involving claims of discrimination or whistleblower actions, however, may be filed directly with MPC without first filing an internal agency grievance.

3. Payroll Claim Protest - If an employee claims to have been underpaid or contests an agency determination that the employee has been overpaid, the employee may file a payroll claim protest with the MPC. These protests have specific requirements and only DHS attorneys and payroll managers are needed to participate in this action.

Adoption The option to engage in an administrative hearing is offered to an adoptive parent in the event DHS: 1. Denies a claim for adoption assistance or determines a claim for assistance is to be an amount

less than what was requested; 2. Modifies or terminates existing adoption assistance without the agreement of the

adoptive parent(s); 3. Delays or denies an authorized adoptive placement with an out-of-state family; 4. Notifies an adoptive parent of an assistance overpayment which the adoptive parent disputes

Foster Care Upon request, an administrative hearing is provided to a foster parent when DHS: 1. Denies a claim for foster care maintenance payments; 2. Pays foster care maintenance in an amount less than that claimed by the foster parent; 3. Makes the determination a child in DHS custody should be removed from or not returned to a

foster home due to findings after an abuse or neglect investigation. Please note, if the removal is the consequence of a court order or a court has upheld the decision to remove a child from the foster home then no right to an administrative hearing exists;

4. Notifies a foster parent of an assistance overpayment which the foster parent disputes.

11

FAQs

What is the difference between a grievance and an appeal to the Merit Protection Commission (MPC)?

A grievance is an internal agency process to resolve employment disputes within the agency. A grievance does not involve an administrative hearing. An appeal to MPC is a process to resolve employment complaints through the Oklahoma Merit Protection Commission. An administrative hearing may occur as the result of an appeal to MPC.

An employee in my division had been given a notice of proposed discipline for termination. That individual disagrees with the proposed notice. Should this employee file a grievance with DHS or file an appeal to the Merit Protection Commission?

Neither. The employee should read the notice of proposed discipline and any attachments. If this person is a permanent, classified employee, these documents should indicate the date and time of the Pre-termination Hearing. This is an administrative hearing where the employee can present one’s own side of the story to a hearing officer. The employee can also submit a written response outlining why the action is improper as well as any supporting documentation to be considered before a final decision is made. If the employee disagrees with the notice of final discipline (following the Pre-termination Hearing), the case can, at that point, be appealed to the Merit Protection Commission.

12

II. Preparing the Case

By failing to prepare, you are preparing to fail. - Benjamin Franklin

Give me six hours to chop down a tree and I will spend the first four hours sharpening the axe. - Abraham Lincoln

During an actual hearing is never the appropriate timeto discover for the first time that an Excel spreadsheethas hidden columns or to learn that the witness does not know the formula that was used to calculate the value of a particular row and column. Find this out far in advance of the hearing.

Preparation is at least a two-step process. First, decide what the ultimate outcome should be, and, second, decide what steps are needed to get there. An effective advocate must understand exactly what resolution the agency is seeking. In other words, what decision or outcome does the agency want from the administrative hearing officer? Once the outcome is understood, then it is time to plan the steps needed to get there. Such planning requires you to talk to witnesses, review all of the evidence, and get familiar with the facts of the case. Preparation also means getting familiar with the relevant law and applicable policy. You can have the strongest facts and present them in the most coherent and logical way possible, but if those facts don’t satisfy each element of the authority on which the action is based, the case is doomed to fail. Preparation involves everything from making sure a witness knows when and where the hearing will take place to knowing what questions should be asked and in what in order. Following these steps in advance of the hearing will help you present a clear, articulate case that shows the hearing officer why the agency should prevail.

Organization during both preparation and presentation will make your job as advocate much, much easier. Exhibits and witnesses should be chosen and organized in a logical way that ensures a smooth and coherent flow during the course of the upcoming hearing. Early in the process is the time you want to decide how your case should be presented and the best order in which to present the witnesses and exhibits. For example, is it better to present the issues in chronological order or follow the order of the charges as they are laid out in the notice of adverse action? Also, during this organizational phase of the case keep your audience in mind. And it’s not just the hearing officer. You are obligated to prepare an organized case that, if necessary, can be readily appealed

13

to a higher authority for review (e.g., a district court). It is best to approach your case from the assumption that the hearing officer is completely unaware of the facts or underlying law and policy in the case. From this starting point, your job as an advocate is to prepare a coherent and orderly presentation of the case that follows a logical progression and touches upon all those relevant facts that best demonstrate what particular law, regulation, or rule was violated.

Anticipation avoids surprises and averts potential disaster. When preparing for any hearing, an agency advocate should put one’s self in the shoes of the individual against whom the administrative action is brought. Consider how the individual will answer the charges and respond to the allegations. It’s true, experience helps when it comes to anticipating what to expect during a hearing. And once an advocate participates in a handful of administrative hearings, this process gets easier simply because similar arguments will often be raised from one hearing to the next. For example, employees facing termination will often claim simple error, improper supervision, excessive work, or inadequate training as the reason for their failures. The agency advocate’s responsibility is to anticipate these defenses and be prepared with a response if and when they are raised. If the employee’s arguments have no merit, the advocate must find and be prepared to present the evidence that shows the employee was not overworked and was properly trained. The importance of anticipating arguments and having a response or rebuttal ready before the hearing even takes place cannot be overstated.

Know your Legal Authority As discussed earlier, legal authority is the underlying basis which permits the agency to take administrative action. As an advocate, you should make yourself as familiar as possible with the legal authority upon which the agency relies to take the administrative action. You must understand the rationale behind that legal authority and its constituent elements. In other words, there was a reason someone took the time to memorialize the rule or policy in writing. As an advocate you must understand the purpose of the rule, policy, or statute. Be prepared to communicate this purpose to the Hearing Officer and capably explain the consequences or harm that resulted because the rule or statute was violated.

The citation form will tell you with which type of legalauthority you are dealing. For example, authoritydesignated as “DHS” references internal DHS policy.Authority designated by “OAC” is an administrativerule contained in the Oklahoma Administrative Code. When you see “O.S.” this indicates your authority is anOklahoma Statute.

14

Find the Legal Authority and understand it. A review of any statute or policy that is applicable to your case is not only suggested, it is critical if you want to prove your case. One of your first responsibilities, then, is to actually find that authority. Again, the agency cannot take any administrative action unless it is spelled out in some statute or administrative rule. As an advocate, you must find the authority, review it, and understand it. If you are ever tasked with serving as an advocate on behalf of the agency and find yourself unfamiliar with or questioning the legal authority under which you are tasked to act, contact a member of DHS Legal Services for guidance. Some quick examples of legal authority are:

a. Employment and Merit Protection Matters i. OKDHS: 2-1-7

ii. OKDHS: 2-1-11 iii. OAC 455: 10-11-17 iv. 74 O.S. §840-6.5(C)

b. Child Care Services i. 10 O.S. §407

ii. OAC 340: 110-1-10 iii. OAC 340: 2-5-110 thru 2-5-122

c. Child Care Restricted Registry i. 10 O.S. 405.3

ii. OAC 340: 110-1-10.1 iii. OAC 340: 2-5-110 thru 2-5-122

d. Community Worker Registry i. 56 O.S. §1025.1 thru 1025.4

ii. OAC 340: 100-3-39

e. Adoption Assistance i. 10 O.S. § 7510-1.1 thru 7510-1.6

ii. OAC 340: 2-5-90 thru 2-5-105 iii. OAC 340: 75-15-47 iv. OAC 340: 75-15-128.6

f. Foster Care i. OAC 340 2-5-90 thru 2-5-105

ii. OAC 340: 75-7-94

15

Be ready to prove the Elements. When your goal is to prove the violation of a statute or rule, it is most helpful to break your authority down into segments or “elements.” Laws are composed of essential components and lawyers are trained to break those components down as elements that must each be proven in order to achieve a favorable ruling. Only if you satisfactorily prove each and every necessary element will you be able to justify the action being taken by the agency.

For example, proving an employee engaged in dishonesty by making false entries to misrepresent that work was performed, you must be prepared to demonstrate:

1. Was an entry made?

2. Was the entry false?

3. Was the entry made for a purposes related to that person’s employment?

4. Was the entry made for the purpose of misrepresentation?

If you can’t prove each element then you cannot prove your case.

Gather your Evidence Most often, the materials you rely upon to develop your case will be documentary. In other words… words. This information may be electronic data or on paper as a hard copy. Regardless of form, these documents need to be located, gathered, and reviewed. Depending upon the type of administrative action, certain documents will always be associated with your hearing and will, quite often, be presented as an exhibit. For example:

Employment / Pre-termination Hearings will incorporate a Proposed Notice of Discharge, Documents under Separate Cover, Statements from the affected employee and witnesses, applicable policies and procedures, prior disciplinary outcomes, the most recent performance evaluation. And if available, do not forget to obtain and review a copy of any written response the affected employee may have prepared after receiving the Proposed Notice of Discharge.

Any document review should include not onlyyourself but also include a review by any witnesseswho may be called upon to testify about or haveinformation pertaining to the document in question.

16

Child Care License Denial or Revocation Hearings can include staff documentation about monitoring visits; complaint investigation materials (including witness statements and interview notes); a facilities history of non-compliance; materials from previous investigations and their findings; information obtained from individual background searches; and law enforcement and district court documents.

Restricted Registry Hearings typically consist of a file containing investigative materials and findings from the Office of Client Advocacy, Child Welfare Services, or the Office of Juvenile Affairs. Also utilized is documentation produced by the Restricted Registry Review Committee, including its decision; historical license revocation and denial documents; law enforcement and district court documents; and the results of individual criminal background searches.

Community Workers Registry files will contain an investigatory report from the Office of Client Advocacy (OCA); the Rights and Responsibilities for the Community Services Worker (DDS-59); the Community Services Worker’s current address sheet (OCA-3); the Individual Plan of the vulnerable adult(s) involved in the case; and either a request for a hearing from the accused worker or a request from the OCA seeking a default petition. Often, other items contained in the administrative file will include law enforcement reports if an associated law enforcement investigation took place; photographs; written statements from the accused caretaker(s) provided to either their employing agency or the OCA; medical reports; incident reports of the provider agency; and a reconsideration decision by the OCA (if reconsideration was requested by the accused worker.

Adoption Assistance Dispute documentation will likely include the protesting adoptive family’s application and supporting materials; materials relied upon by post-adoption personnel relevant to the assistance amount determination; any correspondence or notices exchanged between the adoptive family and adoption workers; court documents from the underlying adoption case; and a listing of the applicable federal regulations and agency rules that serve as the basis for the assistance determination decision.

Foster Home Closures or Decisions to Remove will include the written notice sent to a foster family advising it of the decision by Child Welfare Services to close the home as a foster resource or to remove a specific child or children from the foster home. Also included will be home assessments; documentation obtained from individual background checks; materials reviewed by foster care staff to make the decision to close a home or remove a child; correspondence and notices exchanged between the foster family and Child Welfare staff; previous written plans of compliance; documents from the foster child’s underlying deprived court case; and any prior complaint investigations and findings involving the foster home. Again, many documents you gather will be presented as exhibits at the administrative hearing. Others will not be needed as exhibits but, nonetheless, should still be reviewed. This will help you get a better grasp of the relevant issues and may point you to another document or witness that is needed to prove your case.

17

Prepare and Organize Your Documentation

No matter how skilled or experienced an advocate may become, sloppy preparation and organization will harm any case. Like any courtroom trial, an administrative hearing can involve a complex tangle of facts, witnesses, and exhibits. You should get started as early as possible to make sure your case is developed and documented in a clear, logical, and organized manner. There is no single rule or method to organize your case. Documents can be arranged chronologically, by subject matter, or any other way you think best suits the facts of your case and your presentation style. The key, however, is to be consistent with organizing and identifying your documents.

Gather all of the documents together and place them in a logical sequence. Label each document with a different exhibit number (e.g., Exhibit 1, Exhibit 2, etc.). Once the documents are organized, every individual page of every document should be marked with a sequential number starting at “1.” No page in any document pertaining to the case should have the same number as any other page. The location of each number on the page should be in the same location (e.g., bottom center or bottom right corner) and reasonable efforts should be taken to ensure the numbering does not interfere with or obscure the contents already existing on the page. This numbering allows you to quickly identify a specific page (particularly in large, multi-page documents) without slowing down the pace of the hearing. Anyone involved in administrative hearings should have access to Adobe Acrobat software that electronically labels and numbers documents. Questions about appropriate methods of identifying exhibits and numbering pages can be referred to DHS Legal Services.

The numbering of documents in any legalproceeding is often called “Bates Stamping”or “Bates Numbering.”

When organizing and numbering the documents, find and remove any blank pages (unless, for some reason, a blank page is relevant to your case). Also, avoid using double-sided documents. For ease of reference during the hearing, every page should be single-sided with, again, its own identifying Bates number.

At the time of this writing, DHS does not utilize information technology to present and display exhibits during administrative hearings. Instead, once the documents are organized and numbered, transmit them to DHS Legal Services where they will be reviewed, copied, and placed in notebooks for the hearing.

18

Identify and Organize Your Witnesses

Witness preparation is where much of the “legwork” is needed to present an effective and, ultimately, successful case. Your pool of potential witnesses will vary based upon the type of administrative hearing. For example, when conducting a Pre-termination hearing, consider supervisors, co-workers, clients, subject matter experts, and whoever else is involved that may have information relevant to the case. Supervisors, for example, are often necessary to explain the counseling, training, and job duties of the employee facing termination.

When considering potential witnesses here are some questions to ask yourself:

a. Who are the individuals involved in the underlying circumstances; b. Who has personal knowledge of the facts; c. Who prepared or approved the documents (including written statements)

relevant to the administrative action; d. Who can identify those documents and explain their significance or relevance; e. Who are the individuals identified in the documents relevant to the

administrative action; f. Who is in a supervisory position; g. Who maintains or is in charge of the records needed to justify the administrative

action; and h. What member of management is best positioned to speak on behalf of the agency

and state why the administrative action was taken

Identifying the individuals with this information creates a pool of potential witnesses. Based upon your review of the documents and interviews you will then be able to decide which witnesses in the pool are necessary and which are unnecessary to actually prosecute the case. The witness list should be a breathing document that expands or shrinks based upon your investigation.

Witness Interviews Whenever possible, speak with the witnesses and make reasonable efforts to do it in person. Witness interviews by telephone should always be a secondary option. Speaking directly not only allows you to obtain more facts, it provides you an opportunity to ascertain how effective that person will be as a witness during the hearing itself.

Take the time and effort to document all contacts in the case, even if you do not think it is particularly relevant. Write down a summation of what was discussed during the interview, the means of communication (e.g., telephone or in person), the date, and the time. You never know when something that seemed unimportant at the time may suddenly become relevant or even critical to the case.

19

At any time, if you find out someone is representedby an attorney, whether a witness or a party, contactDHS Legal Services for advice and guidance.

Even witness interviews require some modicum of preparation on the part of the advocate. Identify the separate elements of the legal authority which must be proven in the case and ask yourself what facts, as established through documentary and testimonial evidence, are needed to establish each of those elements. Find and review the relevant documents to determine who should be interviewed and what you will ask. Keep in mind that the primary purpose of interviewing any witness is to glean information and find relevant facts.

As an advocate you need a certain familiarity with each witness you expect to come into contact with. The first step is to simply obtain basic information from each witness:

a. Name; b. Employment background, including current job position, previous positions,

and length of employment; c. Contact information

Each witness’s role in the investigation is determined by the facts that person personally possesses. Some witnesses are sought to recount a specific event or a series of events. Others are called on to verify or authenticate a document relevant to the administrative action. Still others are called to offer their opinion as an expert who possesses special knowledge relevant to the administrative action. Regardless of the witness’s role, you will find it helpful to outline in writing the different issues and elements you need to cover when interviewing each witness. For example, for each fact witness you need to:

b. Ask questions to obtain those facts and decide which are relevant to your case; c. Find out if the witness has any relevant documents or other records; d. Ask if the witness has created any records pertinent to the reason for the

administrative action; e. Determine how the witness came to possess the information (e.g., was it obtained

directly or through some other individual)

20

Scrupulously document any discussions you mayhave with the impacted party. You never know when an admission will be made and it will be importantto reference back what was said along with the dateand time it occurred.

If a witness will testify regarding a piece of documentary evidence, speak to the witness about that document. Show that person the document and review it together. Find out what this individual knows about the document and how that particular person came to possess this knowledge. Ask questions until satisfied both you and the witness are thoroughly familiar with and have total command of the document and its contents. Even if you do not intend to use the witness to introduce a specific document as an exhibit, review it with any witness who may possess information so that person is not surprised in the event the document unexpectedly winds up being shown as an exhibit by the opposing side during the hearing. Be thorough. Areas of concern should be discussed and thoroughly reviewed until you are satisfied both you and the witness can explain any possible inaccuracies or inconsistencies. Try to anticipate what questions may be asked by the opposing side and discuss possible responses. Question witnesses, particularly at the supervisor or managerial level, about their familiarity with the statute, rule, policy, or procedure they are relying on to support the administrative action. Review the legal authority and its elements with them. If time permits, don’t hesitate to discuss information that may seem important to the witness but, in reality, doesn’t seem particularly relevant to the case. You never know where the conversation trail will lead you. Just make sure you keep the witness focused and on topic.

You can also use silence to extract helpful information.Reasonable pauses between a witness’s response andthe next question provides the witness an opportunityto remember additional facts or related topics.

21

During a witness interview, don’t rely on questions that simply require “yes” or “no” responses. Instead, ask as many open ended questions as possible. Encourage your witness to elaborate during the interview process. This is an effective means of eliciting more information and discovering potential weaknesses in the case. Be attentive. Ask follow up questions and respectfully ask the witness to explain inconsistencies. Lock down the testimony of the witness and be absolutely sure you know how the witness came to possess the knowledge you are seeking. Did the individual perceive the facts and events firsthand? Did the knowledge come from a review of business records or other documentation? Is the witness simply repeating what was heard from someone else? Keep in mind, even though administrative hearings are less formal than an actual courtroom trial, speculation and assumptions from a fact witness should have no part in the administrative hearing process. Similarly, avoid using witnesses who would only testify about information someone else told them (i.e., hearsay). It is always best to use witnesses with direct knowledge of the facts.

Take a chronological approach to the interview process but follow up with repeat questions out of chronological order to test the accuracy of your witness’s responses. Use cognitive tools that are intended to refresh a witness’s memory. For example, have them describe locations of events, persons who were present, and what was said. Having a witness set up the scene or provide context to the fact may very well help that person recollect a forgotten fact. Never forget you are interviewing the witness to elicit facts. Be patient when you are asking questions and follow up questions. Do not use the witness simply as a means of confirming what you believe the facts to be. A quality investigator does not assume facts or shape them to fit a preconceived understanding of the events.

Work to make the witness comfortable. The prospect of being a witness at any hearing can be an intimidating experience. The more familiar you both are with the witness and the facts, the better off both you and the witness will be. In addition to the facts, though, talk with the witness about what this individual can expect at the hearing and explain the hearing format. Explain why you are conducting the interview and why it appears this individual has relevant information. Talk about the purpose of the hearing and what role the witness will have in the administrative process. Every participant in the administrative hearing process, particularly witnesses, should be treated with respect and consideration. Finally, and perhaps most importantly, tell your witness the date and time of the hearing and the location, including the hearing room number. Follow up with an email reminder confirming this information. And be sure to provide your own contact information so the witness can contact you with additional information or follow up questions.

22

23

During the witness interview, explain to each witness the importance of not discussing anticipated testimony with anyone else before the hearing. On the day of the hearing, before it actually starts, remind your witnesses not to discuss the case or their testimony with anyone until after the hearing is over. Telling your witnesses not to discuss their testimony with other witnesses helps ensure that what they testify to under oath is their own knowledge and not someone else’s recollection. It also prevents their testimony from appearing as though witnesses “compared notes” before testifying. Preserving the integrity of a witness’s testimony is discussed in a bit more detail in this book’s section dedicated to the Rule of Sequestration.

Every interview should be concluded with a final question that asks the witness if there was any topic or issue that they consider important but wasn’t discussed. Take notes during any witness interview and then afterwards, if possible, write up a summary of the interview. Follow up with the witness if any questions or inconsistencies appear as you review and summarize.

Witness Statements For any witness considered critical to a case, obtaining a signed and dated statement outlining the testimony the witness would be expected to provide at the hearing is a prudent step. If the witness then becomes unavailable for any reason, the statement can be presented at the hearing and serve as the basis to establish the necessary facts. For this reason, it is often prudent to obtain a statement containing relevant information from any witness you consider critical. If the witness becomes unavailable for any reason (e.g., illness, no longer employed by the agency) you can rely on this information to assist in prosecuting the case.

If the witness has already provided a statement by the time you conduct the interview make sure the interview includes a review of the facts within the statement. Use caution if you find it necessary to create a new witness statement based upon additional information obtained during an interview. Consult with DHS Legal before having any witness sign a second statement.

Organize Your Exhibits and Witnesses Prepare an outline based upon how you will present your case during the hearing. Most often the Notice of the agency’s proposed disciplinary action can serve as the basis or underlying framework for such an outline. Using the Notice as your guide helps ensure the hearing officer, who should already have been provided a copy, will be able to follow the progression of your case as it is presented. You should be able to address each allegation contained within the notice in the order it is presented, and your outline should then associate each witness and exhibit with each allegation you will need to prove.

Once you have established the order you intend to present your case, prepare a list of witnesses (with names and job titles) in the order you expect to call them at the hearing. It is always a good idea to provide a copy of the witness list to the hearing officer in advance of the hearing.

Prepare a similar list of exhibits in the order they are expected to be presented at the hearing. Again, provide a copy of the exhibit list to the hearing officer in advance of the hearing. By this time you should have your exhibits specifically identified with an exhibit number (as well as Bates stamped). Take care, therefore, to ensure each exhibit on your list is also identified by its associated exhibit number.

At the start of most administrative hearings, the Hearing Officer should review and identify all documents that will become part of the record and relied upon during the hearing. In the event additional documents or new evidence is introduced, the Hearing Officer will consider whether the materials will become part of the record. It may become necessary to give the opposing party an opportunity to review the new evidence. Depending upon the volume, relevance, and impact of the document, this may actually require a continuation of the hearing to another day. To avoid the hassles that can arise with an unwanted continuance, thorough preparation is critical to identify all of the documents necessary to prosecute your case and have them submitted to the opposing party and the hearing officer well in advance of the hearing itself.

Identify Weaknesses Just as it’s your job to prove why the agency’s suggested course of action is appropriate, the person on the other side of the table (and that person’s lawyer, if there is one) will be looking for ways to prove the contrary. With this in mind, remember no case is perfect. There will be weak points the other side will try to exploit and bring to the attention of the hearing officer. These potential problem points should be anticipated and addressed before you find yourself sitting in front of the hearing officer. Take a few moments to think about how you would attack the agency’s case, if you were on the other side. For instance, does the discipline imposed match the seriousness of the alleged misconduct? In cases of termination, for example, if the misconduct is in the nature of poor performance, has the employee received previous counseling and warnings regarding that person’s work? If not, why not? Is there a good explanation why not? Have the employee’s evaluation forms (OPM-111’s, HCM-111’s) addressed the problems? Has the agency complied with the time lines regarding notice, etc.? Is the requested action commensurate with the infraction?

You can begin to address potential problems with a case by talking to the people who are in a position to know the facts. From there, try to find any documentation that could be used to refute there actually was a problem. For example, talk to the employee’s supervisor or next level manager. Did the worker get the same training as everyone else doing the job? Is there documentation showing the employee received specific and relevant training? Was the worker assigned to the supervisor because that person was considered the best at encouraging and training the worker? For each of these problems, dig deep and you may find there are witnesses who can testify to facts which address the issue. Or there may be documents available to help disprove the employee’s claims.

24

After reviewing the evidence, you may come to the conclusion it could be difficult proving some element of your case. Remember, success is possible only if each and every element is satisfactorily proven. It may be helpful, perhaps, to write down the element(s) you need to prove and match any documents or witness testimony you intend to rely on when proving your case. Take an objective look at the evidence and ask yourself whether an impartial judge would consider this sufficient. If not, go back through the materials. Re-question witnesses. If necessary, expand the scope of your inquiry to find the supporting evidence you will need.

If you have the benefit of a statement or communication from the individual who is the subject of the hearing, they have provided you with some valuable insight. Review these materials thoroughly and come to the hearing with responses to each allegation or defense posed. In an employment termination context, for example, is the employee going to blame the agency for any short-comings in performance? Will this person claim there was no training or too little training to show how the relevant task was to be performed? Will there be a claim too much work was assigned that prevented tasks from being completed in a timely manner? Is the employee going to claim that a supervisor held a personal grudge and set the employee up to fail? Being aware of this information in advance of the hearing will make it much easier to thoroughly prepare and anticipate likely defenses to the administrative action.

Hearing Notebook Preparing a Hearing Notebook will help you stay organized and assist you in covering all of the necessary elements to prove your case in precise and logical steps. There is no single method to prepare your notebook. The notebook is going to be your personal “reminder” of the evidence you have and the steps that must be completed before and during the administrative hearing. Organize it in a way that best suits you. For example, using tabbed dividers that break the hearing down into its anticipated, chronological parts is often helpful. These tabs can include:

a. Notice of agency action; b. Opening Statement; c. Questions or outlines for direct examination of agency witnesses; d. Questions or anticipated areas of cross-examination of opposing party’s witnesses; e. Closing statement

Incorporate any additional tabs to identify other “reminders.” For example, you might want to include working copies of documents you will use as exhibits at the hearing. These copies can have your notes, highlights, or annotations.

Preparing an effective trial notebook has the additional benefit of further familiarizing yourself with the case. By preparing the notebook in the order you plan on presenting your case and filling it with the evidence you plan on using, you are virtually forced learn the details of your case. In fact, by compelling you to become familiar with your case, it may become less necessary to refer to the notebook to any significant extent during the hearing itself. If you need it, however, it will be there.

25

Handling Newly Discovered Evidence If newly discovered evidence comes to light after you’ve served the opposing party with notice of agency action, but before the hearing takes place, several factors will determine how you should proceed.

If the evidence simply supplements or reinforces the same or similar issues to be addressed at the hearing you may decide there is no point in adding the new evidence to what you already anticipate relying on to justify the agency action. If the newly discovered evidence shows the employee’s conduct was far more serious than originally thought, however, you may be compelled to consider an alternate approach.

You have a decision to make with newly discovered evidence that you feel may help better establish your case. In those cases in which you have already provided notice, it is likely you can’t just add it to the pile of supporting evidence. Many administrative processes have specific rules outlining how new or additional evidence is to be handled after notice has been provided. For example, in the context of employment Pre-termination hearings, Merit Rule 455:10-11-17(b)(2), at (B) and (C) provides that the notice of a Pre-termination hearing shall include, at a minimum: all grounds for the proposed action; and a summary of evidence or physical evidence to support each of the stated grounds for the proposed action. Consequently, if you discover new evidence that you feel compelled to use within seven days of the hearing, it may be necessary to withdraw the original notice of proposed discipline, and serve an amended notice. Failure to provide notice in accordance with the rules could result in cancellation of the hearing if the new evidence is brought to the attention of the hearing officer. If the case has already been tried and decided, it could wind up being reversed on appeal based on concerns the due process rights of the affected individual were not protected. Another option, if the hearing is more than seven days away, you may consider supplementing the Documents Under Separate Cover and re-submit it to the affected party. Again, the rules require at least seven (7) days for the opposing party to receive and review the new materials in advance of the hearing. If there are less than seven days before the hearing, a continuance of the hearing is likely needed.

If new evidence arises which appears helpful to the responding party, consider what difference it makes in your case. Does it change the underlying basis for pursuing the administrative hearing? Can you overcome this newly discovered evidence with rebuttal evidence of your own? If such a situation occurs, it is strongly suggested you talk with a supervisor (e.g., the discipline manager) or DHS Legal Services about what effect the newly discovered evidence has on your case.

Evidence Sufficiency Any advocate pursuing an administrative matter should always ask one’s self, does the evidence adequately prove a violation of the applicable rule or regulation? In other words, is the collective weight of the evidence sufficient enough to justify that a violation has occurred? Whether the agency has sufficient evidence to prove a violation of the applicable rule or regulation is a

26

determination that takes place well before you find yourself at the hearing. If the agency does not have sufficient evidence to prove a violation of the applicable rule or regulation, serious thought should be given to withdrawing the notice of intended action. The advocate can then determine whether the agency has sufficient evidence to support a different rule violation or a lesser form of discipline. If so, the notice can and should be revised to more accurately reflect the sufficiency of the evidence.

As discussed above, the effective advocate will need to look at the separate elements of the rule or regulation that is alleged to have been violated. A successful prosecution will only result if the evidence shows that each element needed to prove the violation is satisfied. A determination of evidence sufficiency, therefore, requires a detailed and cumulative analysis of the documentary and anticipated witness testimony.

Particularly in the context of administrative hearings,there is nothing that mandates any party deliver anopening statement or a closing argument. Oftentimes, however, the opportunity to deliver a closing argumentis at the discretion of the Hearing Officer. If available, these opportunities, however, should not be passed up.Both are important opportunities to present your caseto the hearing officer in a logical and coherent manner.

The Opening Statement and Closing Argument Once you have the facts and documents gathered and the witnesses interviewed and prepared, the time has come to work on an Opening Statement and a Closing Argument. Your Opening Statement is an opportunity to explain what you anticipate the evidence and witnesses will prove. It is a look forward. Your Closing Argument is a retrospective commentary on the strength of each party’s case and the evidence to support it. It is an opportunity to literally argue before the hearing officer that the circumstances of the case justify the action the agency seeks.

Opening Statement As touched on above, the opening statement is an outline of the case that is to be presented. It sets forth the basic question to be decided and outlines what the evidence will be, either in the form of testimony or exhibits to be introduced. An opening statement is akin to previews for a movie. They let you know what the movie will be about and capture the interest of the audience without giving away all of the details.

27

As prosecutor in the case, the advocate will present an opening statement first. Although every effort should be made to persuasively lay out the facts that will be presented, the opening statement should not contain pure argument. Your chance to argue takes place toward the end of the hearing. The advocate presenting the case for the agency uses the opening statement as a road map of the case to describe the witnesses who will appear, the key points to which each witness is expected to testify, and the significance of documents and other exhibits that will be presented. If a problem exists in the case, it is usually best to describe the issue (e.g., the employee did not receive a timely mid-point performance evaluation) along with the reasons why the agency believes the action the agency has proposed is still appropriate (e.g., the supervisor had many well-documented conferences discussing the employee’s performance problems). At the end of the opening statement, you will set forth the action that you are seeking from the hearing officer and a brief statement of the reasons that you are urging this action. An opening statement has the advantage of primacy. It can shape the context of how the hearing officer possibly perceives the case when it is presented by the opposing party. It provides the hearing officer with context and a clear understanding of what will need to be decided in order to resolve the case.

An opening statement can be written out word for word. However, it usually works better to avoid the “scripted” approach and simply write down the topics you want to address during your statement. Do whatever works best for you, but, as you gain experience, you will generally find it unnecessary to rely on a script. Again, just write down the points you want to make. Relying upon an outline or similar format will make it easier to maintain eye contact with the parties as well as the hearing officer, and will make it easier to have a smooth and conversational approach to your presentation.

Closing Argument As your opening statement is intended to be a look forward, the closing statement is a look back at what has been presented during the hearing. It is a summary that ties all of the witnesses and the exhibits together. Unlike the opening statement, a closing argument moves beyond a persuasive recitation of the facts and occupies the realm of argument. While an opening statement outlines the facts to be presented, the closing argument sets forth why these facts are important (e.g., the performance problems of the employee caused improper delays or prevented clients from receiving benefits or the performance problems significantly increased the workload of other properly performing DHS employees who had to straighten out the mess caused by the employee’s performance problems). A strong closing also offers argument why one witness or document is more persuasive than that presented by the opposing party. For example, the closing argument can point out that a witness is less experienced, less objective, or has had a limited opportunity to observe the situation compared to the witness offered by the agency. Remember, effective argument does not mean your presentation needs to be bombastic or over-the-top in style. Avoid histrionics and prophesies of impending doom. Rather, be reasonable in both content and presentation. Persuasive argument should be a vehicle that projects professionalism and rational conviction.

28

-

You may also want to avoid writing down specificquestions for direct examination of witnesses. Make note of the topics you want to cover and allow theexamination of the witness to be more conversational. When you aren’t focused on finding your next question,you can listen to the witness’ answers, and better tailoryour follow up questions.

Rebuttal Argument At some hearings, the advocate may be given the opportunity to reserve time for rebuttal, which is a brief response to the closing statement of the opposing side. There is no correct decision whether a rebuttal is appropriate. If it is apparent the hearing officer will already have a clear idea of the issue to be decided and a clear understanding of the evidence that has been submitted, a rebuttal may be superfluous, an unnecessary expenditure of time, and an unnecessary risk that opens up issues irrelevant to the case. In other situations, the opposing side may have mischaracterized the testimony that it has presented or distorted the ultimate question the hearing officer must decide. The rebuttal, at that point, is an opportunity to correct misstatements and point out exaggerations. The time allowed to issue a rebuttal argument is typically brief, so any corrections or refutations must be succinct and to the point. While it is possible to engage in further argument (called by terms such as a “sur-rebuttal”) this is rarely if ever required or even permitted by the hearing officer. It is possible, however, that the opposing side may ask the hearing officer to allow a sur-rebuttal to your rebuttal. Again, this may or not be granted. If the matter and evidence are clearly framed and well-presented and you have done everything that needs to be done, it is often best to simply forego any rebuttal and let the hearing officer decide the question. Avoid endless rounds of sur-rebuttals and replies. These make it deceptively easy to transition from effective advocate into a quarrelsome antagonist.

Take the time to practice an opening statementor closing argument aloud, particularly if you arerelying only on an outline or discussion topics. This not only provides you the benefit of rote practice, butalso gives you the opportunity to review and retainthe information you will need to for quick and easyrecollection when the hearing itself takes place.

29

30

To summarize, strong closing arguments put the case in context for the hearing officer. An agency advocate should never pass up the opportunity to make a closing argument. This is the opportunity to tie the case together into a coherent whole. It gives you the psychological advantage of recency; the effective story told closest to the end can have a significant persuasive impact upon the hearing officer.

Scheduling the Hearing Boiling down the concept of procedural due process means the government must provide someone with notice and the opportunity to be heard. The party against whom the administrative action will be taken needs to be provided sufficient opportunity to prepare a defense and answer the charges. For this reason scheduling an administrative hearing is more than a matter of convenience, it is a means of guaranteeing someone’s rights.

When you are tasked with acting as an advocate on behalf of the agency, part of your responsibilities is to ensure the hearing proceeds smoothly and fairly. A first order of business, then, is to find out who is in charge of scheduling the administrative hearing in order to set a hearing date. Scheduling a Pre-termination hearing is typically worked out by a visit or phone call to support staff in DHS Legal. Once you have the anticipated date and location of the hearing, this information needs to be passed along to the affected party. The type of notice and the means of delivering that notice will vary depending upon the importance of the rights being impacted. It can be as simple as a phone call or an email. In other contexts, the process of notification is more involved. For example, to conduct a Pre-termination hearing, both the Notice of Proposed Discharge, and Notice of the Pre-termination Hearing (typically combined in the same document) must be made by personal service (i.e., delivered in person and acknowledged by signature) or certified mail, restricted delivery. The Merit Protection rules also require the Notice be provided to the employee at least seven working days before the hearing itself. If you do not get the Notice properly served in the required amount of time, the hearing will very likely have to be rescheduled. Therefore, it is suggested you obtain a hearing date sufficiently far into the future (e.g., two weeks) to give yourself enough time to effect service and adequately investigate the case.

The logistical information (i.e., date and time) is, quiteoften, accompanied by additional notice intended tosufficiently explain the type of action being taken andthe precipitating events. All of this information is needed to satisfy the requirements of “due process.”

Providing yourself with adequate lead time will also give you sufficient opportunity to notify your witnesses of the date, time, and location of the hearing, and provide you the opportunity to interview and adequately prepare them.

Circumstances can, and often do, conspire to result in one party or the other asking for a continuance of the hearing date. If a hearing has already been scheduled and communicated, it is best for both parties to discuss and agree on seeking a continuance from the Hearing Officer. From there, the next typical step is for the advocate to notify the hearing officer directly and ask to reschedule. If the hearing officer believes there is sufficient reason to change the date, such a request will usually be granted. Communicating directly with the hearing officer under these circumstances is one of the few situations in which it is permissible and appropriate to engage in an ex parte communication with the hearing officer. This term, ex parte, is explained in more detail next.

Ex Parte Communications American justice is founded upon the concepts of “argument” and “rebuttal.” Just as a party is afforded the opportunity to engage the judge or hearing officer with arguments that support their position, the other side should be afforded a similar opportunity to provide a timely response that rebuts or refutes the other’s argument. For this reason, “ex parte communications” with the hearing officer in any administrative matter should be strictly limited or avoided altogether.

Latin for “on one side only,” the term ex parte communication simply boils down to one side speaking to the hearing officer without the other side being joined into the conversation. Limiting or preventing ex parte communications helps ensure one side does not gain or attempt to gain an unfair advantage over the other by clandestinely or unilaterally engaging the hearing officer. Under most circumstances, communicating with the hearing officer or administrative law judge should be avoided. Instead, any advocate acting on behalf of the agency can simply turn to DHS Legal Services for answers to any procedural, legal, or strategic questions that may arise. In fact, if an advocate thinks an issue should be brought to the attention of the assigned hearing officer, a prudent first step would be to consult with a member of DHS Legal for assistance to decide if this is necessary or even allowed.

Avoiding ex parte communications is not limited solely to interacting with the hearing officer. During any phase of the administrative process, an advocate should strive to avoid contact with the party whose rights are being affected except when necessary to fulfill your responsibilities in the administrative hearing process. And once an advocate is made aware that the opposing side has retained an attorney as counsel, any communications should be directed toward or, at the very least, include that attorney.

The running theme throughout this book is to ensure fairness for all sides within any administrative process. Eliminating ex parte communications during the prosecution of any case is simply another means of ensuring the party against whom the administrative action is being taken suffers no disadvantage and is afforded sufficient due process.

31

FAQs

Why are the contents of some documents under separate cover (DUSC) redacted? Because the documents under separate cover (DUSC) may include statements from other employees or have personal identifying information that is confidential, employees receive a redacted copy. A non-redacted copy is available for their viewing upon request.

What if I interview a witness who disagrees with the proposed action and thinks that the agency’s position is incorrect? You should consider the reasons that the witness holds this opinion. If the witness is simply a friend of the affected party, then this opinion may not be significant to your case. On the other hand, if the witness believes that the facts underlying the basis of the agency action are incorrect, and has testimony/evidence to that effect, then you should evaluate this opinion with more scrutiny. Consider whether the testimony offered by the witness impacts any of the elements of the case which you must prove. If it does, then evaluate what other documents and witnesses support your position for that particular element. Perhaps the other witnesses have more experience regarding that issue, or, perhaps there are documents which strongly indicate the contrary witness is incorrect. Be prepared to offer evidence and testimony which shows the increased credibility and reliability of your witnesses and documentary evidence.

What if the employee calls and claims to be unable to attend the Pre-termination hearing due to illness/ doctor’s orders/pre-existing plans to be out of town that day/ a lawyer told that person not to attend? Generally, you should be open to working with the employee if there seems to be a legitimate reason for asking to reschedule a Pre-termination hearing. For instance, if the employee has become ill, and expects to recover after a brief time, you may agree to reschedule the hearing.

If the employee has more of a chronic condition, and can’t tell you when that person would be able to attend a hearing, there is probably no point in rescheduling the hearing.

If the employee has plans to be out of town, it would make a difference if the employee has had long­standing plans to attend a child’s college graduation, or accompany a spouse to the White House to be honored, as opposed to a situation where the employee has seemingly cooked up a trip to the lake after learning of the scheduling of the hearing.

If the employee’s lawyer has advised the employee not to attend, there is no point in rescheduling the hearing, because the employee would not attend no matter when you scheduled the hearing. (However, if the employee’s attorney asks to reschedule the hearing due to a previously scheduled commitment, you should accommodate a request to reschedule to the extent you can).

32

FAQs (continued)

When I meet with my witnesses prior to the hearing, how do I talk to them? Can I tell them what they need to say at the hearing? Preparing a witness for a hearing usually involves telling the witness what that person’s role is in the hearing, and what it is you are trying to establish through that person’s testimony. It is never appropriate to tell a witness what should be said, or how to answer a question. But, you can tell the witness what to expect when questioned by you or by the other side. You can also ask the witness during the preparation process what an answer would be if a particular question is asked.

It is also best to prepare witnesses separately so they are able to testify from their own knowledge and perceptions, and are not improperly influenced by the recollections of another.

Bits of Wisdom ➢ Since there is a certain amount of repetitiveness to prosecuting an administrative hearing, the

use of checklists to prepare is good practice. Even though airline pilots may know every step to fly a plane by heart, they still use checklists no matter how skilled or experienced they may be. The use of a checklist helps guarantee you don’t leave out a key step or ignore a critical element in your case.

➢ Every page of every document submitted as evidence at a hearing must be numbered (Bates Stamped); this includes blank pages. When preparing your case and making copies, remove extraneous blank pages unless relevant to your case, prior to Bates Stamping. This makes it much easier for all parties to navigate through the information.

➢ It is imperative that you know the facts and have the supporting information of your case. A recommended method is creating a “Hearing Notebook.” It allows the information to be organized and ensures you have everything needed when you are at the hearing.

➢ Document and keep any contacts or communications you have with the affected party, even if it is not information that is going to be added to the disciplinary action. You never know what information may ultimately be relevant and useful.

➢ Meeting witnesses in person rather than calling them, to review the case information adds a personal touch and offers you a better perspective when it comes to gauging their testimony and demeanor. Personally preparing a witness also helps them address any anxiety they may have prior to the hearing.

➢ Be prepared for common defenses according to your case type. i.e., look for loopholes the affected party will use as a reason to justify their behavior and/or actions. For example, in a Pre-termination hearing common defenses may be caseload size, numerous supervisors over a certain time period, not enough training, etc. Many employees will use these when initially being disciplined or will have them in their written response to the proposed notice.

33

Chapter III

Prosecuting the Case /

Conducting the H

earing

Topics covered in this chapter: Creating the Record

Invoking the Rule of Sequestration

Opening Statements and Questioning Witnesses

Witness Cross-Examination

Introducing Exhibits

Handling Surprises at the Hearing

An Advocate’s Responsibilities

Holding the Record Open

Decorum at the Hearing

Subsequent Steps After the Administrative Hearing

FAQs

Bits of Wisdom

One Lawyer’s Top Ten Administrative Hearing Tips

III. Prosecuting the Case / Conducting the Hearing

Nothing can stop the person with the right mental attitude from achieving his goal; nothing on earth can help the person with the wrong mental attitude. - Thomas Jefferson

To succeed in your mission, you must have a single minded devotion to your goal. - A.P.J. Abdul Kalam

The case you are assigned, prepare, and present should be fluid and dynamic, constantly changing from the moment it shows up on your desk until you finish presenting it to the Hearing Officer for a decision. You cannot anticipate exactly where the evidence will lead and you cannot predict what the opposing party will do when presenting its case. An advocate, therefore, cannot be fixed and immovable, but must be ready to adapt. For example, when actually presenting the case at hearing, the advocate should avoid reading prepared notes and statements. Instead, one should speak with the help of, perhaps, an outline. This helps avoid a stilted and dull presentation in favor of an authentic and conversational presentation. The advocate should speak to the hearing officer with conviction but still maintain an informative and conversational tone. Ultimately, an advocate must find one’s own voice and style. And while there is no single, correct style of argument, authenticity, candor, and an in-depth knowledge of the case are key elements to success. With experience, these traits become easier to attain and exploit.

When first acting as an advocate on behalf of the agency, it may be helpful to imagine yourself supporting a particular decision that must be communicated to your Division Director or even the Director of DHS and the Chief of Staff. How would you undertake this responsibility? To start, you would respectfully set forth the decision that needs to be made, present the evidentiary facts that support the decision you are urging, and you would be completely candid. If a problem or weakness exists, offer an acknowledgment, and explain why it should not affect the decision that you are urging. Effective trial lawyers are rarely the bombastic stereotype presented in film and television who attempts to browbeat a judge or jury into a particular decision. Effective advocates persuade. They lead the hearing officer through the evidence which has been thoughtfully assembled; expose the weaknesses of evidence brought forward by the opposing party; and guide the hearing officer to the suggested resolution proposed by the agency.

34

-

The purpose of a pre termination hearing is todetermine whether reasonable grounds exist to believethat charges made against an employee are true andwhether those grounds support the drastic step ofdischarge from employment.

Creating the Record Since administrative hearings are a means of protecting the right of the individual, the right to a hearing that is fair and impartial is of paramount importance. In order to ensure an individual’s rights were protected and later be able to prove they were protected, it is critical to create a record. The record at an administrative hearing is a reflection memorializing what transpires, what is presented, who is in attendance, and what is decided. An “official record” consists of all evidence offered for admission, an audio recording or transcript of the proceedings, and a written decision by the hearing officer. In most administrative hearings, the official record will be created and maintained by the hearing officer who initiates an audio recording of the proceeding and then takes possession of all written evidence offered for admission. Absent special circumstances, the record cannot be reduced, added to, or otherwise supplemented after the hearing is complete. The only exception to this rule would occur when the hearing officer “leaves the record open” for the parties to submit additional evidence. Holding the record open is explained in more detail below.

Ultimately, if either party disagrees with the hearing decision, it often has the opportunity to appeal. An appeal can be submitted within the agency itself by allowing the agency head or a designee to consider and decide the appeal’s merits. Other appeals can be made directly to a district court for review and consideration. As a general rule, any attempt to challenge an administrative decision will rely solely upon the “official record” from the proceedings held before the administrative hearing officer. Logically, these are often referred to as “appeals on the record.”

If possible, have someone trustworthy sit with theuncalled witnesses during the hearing and make surea departing witness does not discuss prior testimony orthe proceedings with any remaining witnesses.

After providing testimony but before leaving thehearing room, a witness should be advised that it isnot permissible to discuss their testimony with anyremaining witnesses after leaving the hearing room.

35

A significant exception to the right to “appeal on the record” is the record that results after an employment Pre-termination hearing. The decision made by a hearing officer after a Pre-termination hearing is only a recommendation and is not binding upon the agency manager who is ultimately responsible for deciding whether to issue a final notice of discharge. If an employee appeals the manager’s discharge decision to the Oklahoma Merit Protection Commission, the record that was created in the Pre-termination hearing is not an issue for consideration. In other words, an appeal of discharge to the MPC is not impacted whatsoever by the earlier Pre-termination hearing. The agency presents an entirely brand new case for discharge and bears the burden of proof to show that termination was appropriate under the circumstances. You will likely hear this referred to as a de novo proceeding, because all testimony and exhibits are presented as if they have never been introduced and considered at the Pre-termination hearing. This hearing and the decision by the hearing officer have no weight, other than to show that a critical element of due process was properly conducted in accordance with decisions of the U.S. Supreme Court and in compliance with the Oklahoma Personnel Act.

If one party appeals an administrative determination to an outside court, an attorney from DHS Legal will assume responsibility at that point to prosecute the case.

Invoking the Rule of Sequestration Quite often, prudence demands that any hearing be initiated by invoking the “Rule of Sequestration” or, more simply, “The Rule.” In order to prevent potential witnesses from listening to the testimony of any preceding witnesses, a party may request that the judge or hearing officer impose the Rule of Sequestration for the duration of the hearing. Upon the order of the hearing officer, all witnesses will be told to leave the hearing room until they are called to provide their testimony. The Rule of Sequestration is designed to prevent one witnesses from altering their testimony to intentionally match or contradict the testimony of a prior witness.

Oklahoma statute actually codifies the rule of sequestration and provides some exceptions to those individuals who would otherwise be sequestered during the hearing. Specifically, the following individuals are exempted from the sequestration rule; 1) a party to the case who is a natural person; 2) if a party is not a natural person (corporation, e.g.), an officer or employee of the entity may be designated as its representative by its attorney; and, 3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause. In the context of a Pre-termination

36

hearing, the first exception permits the presence of the employee whose discharge is proposed. The second exception permits the presence of a representative of the agency in addition to the person presenting the case as the advocate. The third situation will occur infrequently, if ever. If it does, the hearing officer or ALJ will have to issue a ruling whether the person’s presence is necessary to the hearing.

Opening Statement and Questioning Witnesses When it’s time to start and the Hearing Officer advises you to proceed, you will begin with the Opening Statement. As discussed earlier in this handbook, you should include a recitation of the decision that must ultimately be made in this case. Offer a summation of the evidence, both documentary and testimonial that you intend to present. This is your opportunity to tell the Hearing Officer and those who may be present what you, your witnesses, and your evidence will prove. When the Opening Statement is finished, the Hearing Officer should give you permission to proceed with your case.

So, after you conclude the opening statement, what’s next??? Now it’s time for your witnesses to prove your case. How well you prepared your witnesses will now become abundantly apparent. Their testimony, provided in response to your questions, creates the record on which the decision of the Hearing Officer will be made. Even your documentary evidence must be introduced through witnesses. They must explain what it is and why it is relevant. Never forget, the advocate is not testifying; the witness testifies. Leading questions - questions which can be answered “yes” or “no” - are not effective. Leading questions make you, the advocate, a witness. Instead, questions should be open-ended in order to elicit actual testimony, not just single syllable responses (e.g., What did you observe at that time? Can you describe the individual’s demeanor at the time of the accident?). The testimony should explain the significance of the facts to which the witness is testifying. If a witness is introducing documentary evidence, the witness should assist the hearing officer in understanding both what the document is and why it is important. The advocate should not ask a question that assumes a fact that has not been proven or demonstrated by the evidence. Instead, the advocate should painstakingly establish each fact, one by one, until everything that the advocate had planned to present in the pretrial outline has been presented to the hearing officer.

Witness Cross-Examination After the opposing party presents evidence, the advocate should be given an opportunity to cross-examine each witness. Depending on the rules or format of the hearing, cross-examination can take place with the advocate directly asking questions or through questions posed through the hearing officer. Regardless of how the questions are posed, cross-examination is an opportunity to clarify and rectify the record. Is there a fact which the witness has omitted? Did the witness not have a proper opportunity to observe? Is there something about the witness which would lessen credibility? Has the witness exaggerated or overstated what occurred? Has the witness minimized something that is actually important? All of these questions can and should be asked, depending upon the facts and testimony of each case. And, when it comes to cross-examination, it is proper

37

to ask a leading question in order to elicit only a “yes” or “no” response. For example, an advocate may start off a question with the phrase, “Isn’t it true that….” and proceed to lay out a scenario or set of facts.

In sum, during cross-examination, you are no longer attempting to have the witness tell a story, but you are, instead, compelling the witness to admit there are inconsistencies, oversights, or weaknesses in the story that person has just testified about.

Introducing Exhibits Introducing exhibits during the typical judicial trial can be a burdensome experience. Administrative hearings, thankfully, tend to streamline the introduction and handling of evidence. In most cases, the parties are encouraged to agree on the introduction of all evidence they possess at the beginning of the hearing, and each item is then identified, placed into the record by the hearing officer and simply referenced as the hearing proceeds. The alternative involves a more formal process of introducing evidence, more akin to introducing an exhibit during a judicial trial. This requires:

a. Having the exhibit marked for identification. b. Showing the exhibit to opposing counsel. c. Handing the exhibit to the witness, while stating on the record what you are doing. d. Asking whether the witness recognizes the exhibit, describing it solely by its

exhibit number. e. Asking what the exhibit is. f. Laying the foundation for its admission. In other words, establish the exhibits

authenticity (Is it what it purports to be?) and relevance (what fact of consequence to the case does it bear upon.)

g. Offering the exhibit into evidence. h. Obtaining a ruling from the hearing officer whether your offer is accepted or not. i. Having the exhibit marked in evidence. j. Recording in your trial notebook the date and time of receipt into evidence.

Again, most hearings involve a much less formalized means of introducing exhibits and it is very doubtful you will ever be called upon to introduce exhibits in such a formal manner.

Handling Surprises at the Hearing At times, an advocate can take all the necessary steps to avoid surprises, but they can and will occur. Even the most thoroughly prepared case will encounter evidence or testimony that was not anticipated. The key is to react calmly and rationally. Don’t get rattled. If witness testimony or an exhibit elicits new facts, there is nothing improper about asking the hearing officer for an opportunity to consider and, if necessary, further investigate the new information. This opportunity can consist of a simple recess during the hearing to ask questions of existing witnesses. Or it may require more time to seek out and question new witnesses or review newly discovered documents.

38

If the opposing party presents never before seen documentation, ask for the opportunity to review. If the document is lengthy, ask to recess the hearing until the review is complete. Depending on the volume or relevance of the new information, such a recess can last from a few minutes or it can require the hearing be continued to another date.

Unforeseen surprise may make it necessary to call a new witness to testify. If so, speak with that witness outside of the hearing room and determine if there is testimony that is relevant. If the witness is necessary and a continuance to another day is not possible, there is nothing wrong with seeking permission from the hearing officer to call the new witness either in person or by telephone.

If the hearing officer believes that you are prepared but were surprised by evidence or claims that could not have been foreseen, there is a good chance that some type of allowance will be provided if a request is made to continue the hearing. Be reasonable when seeking the continuance and explain the reasons that justify the delay. Keep in mind that the ultimate goal is that justice be served and rights are protected.

An Advocate’s Responsibilities And remember surprise can be a two-way street. This is an ideal opportunity, therefore, to bring up one’s responsibilities as an advocate. It is irresponsible and unethical to try to obtain any advantage by unfair surprise or other underhanded means. Neither the agency nor justice and due process are served by mistreating, abusing, or deceiving the opposing side. No participant in an administrative hearing should seek to gain a tactical advantage by presenting baseless arguments and undisclosed evidence, or engaging in trial by ambush. These tactics will be easily identified by the hearing officer or administrative law judge, and once you are branded as an advocate with questionable ethics, it is difficult, if not impossible, to wipe the slate clean. The most effective arsenal an advocate can possess is thorough preparation, a comprehensive familiarity with the facts, and the intent to provide the opposing side with the due process that is deserved.

Holding the Record Open On occasion, during the course of a hearing, a particularly important document or documents are referenced by a witness or presented for consideration. Unfortunately, these documents or referencing testimony may come as a surprise to the parties and the hearing officer. To satisfy due process and to give the parties sufficient time to address any new documentation, the hearing officer has the option to leave the record open even after the hearing has concluded. Leaving the record open affords an individual with additional time to supplement the record with these referenced documents. This decision to leave the record open should be announced to all the parties at the close of the hearing with specific deadlines for submission of additional evidence. The record is generally left open for a very short time (for example, two days) to provide the requesting party an opportunity to gather and deliver copies of the relevant or responsive documents to the judge and the opposing party. The other party (most often, it’s the agency)

39

is then given time to respond to the documents in order to further explain them or otherwise minimize their impact on the issues heard at the hearing. Once each party is given an opportunity to be heard and the record is supplemented then the hearing is officially closed. Holding the record open should be a rare event because the most important documents should already be presented and in the hands of all the parties prior to the hearing date.

Decorum at the Hearing You were chosen to serve as an advocate and represent the agency in its administrative hearings for a variety of reasons. Not least of which is the confidence the agency has that you will serve with integrity and professionalism before, during, and after every hearing. An ideal advocate maintains proper decorum at all times and takes steps to ensure one’s own behavior and the behavior of any witness is appropriate and shows proper respect for the participants and the process. To help you live up to that expectation, here are some reminders on hearing decorum.

Cell Phones / Smart Phones It’s getting harder and harder to function without a cell phone. And cell phones are helpful if you need to quickly contact a witness or co-worker during the course of a hearing. Unless specifically provided permission by the hearing officer, however, never text, surf, e-mail, or engage in a phone conversation inside the hearing room and, most especially, during the hearing itself. Wait for a break in the proceedings. If necessary, ask for a brief recess. When you’re in the hearing room itself, always make sure your phone is turned off or silenced. It is strongly recommended to not even place the phone on vibrate.

Proper dress A safe rule of thumb for both advocate and a witness is to dress for an administrative hearing the same way you would dress for work. Standard office attire is usually appropriate. A dress or coat and tie, while certainly not frowned upon, generally are not mandatory in an administrative hearing.

Proper language The strength of any argument is bolstered or diminished by the words you choose and the tone you convey. Words and tone that are hostile and argumentative are counter-productive to your efforts as an advocate. Most certainly, offensive language and personal attacks have no place in any judicial environment, whether a courtroom or a hearing room. Do not become defensive if the hearing officer makes a ruling adverse to your position. Accept the decision and move on.

Addressing the Participants While there certainly are no absolute rules dictating how one should address the parties in an administrative hearing, it preserves the dignity and integrity of the proceeding to maintain some level of formality. Whether you are addressing someone directly or simply making reference to them, respectfully use the titles “Mr.”, “Mrs.” or “Ms.” before identifying someone by their last name. Use of “ma’am” or “sir” is also appropriate. No matter how familiar someone may be with another individual outside the context of the administrative hearing, use of an individual’s first

40

name during any hearing can call into question the impartiality of the entire proceeding. This goes for every hearing participant, including the hearing officer or administrative law judge. Some hearing officers or ALJs may go so far as insisting they be addressed as “Judge” or “Your Honor.” Others may not require this, but, regardless of the salutation chosen, referring to a hearing officer or ALJ by a first name is strongly discouraged.

Proper behavior / body language How you carry yourself conveys volumes. While a digitally recorded hearing will not pick up on expressions and gestures of both face and body, the participants will, including the hearing officer. Carry yourself with a relaxed confidence, and do not try to convey with your face and body what you should not communicate in words.

Respect for all participants This is self-explanatory. An advocate is an employee of the state and a member of the administrative court. Every participant in the process, from the hearing officer to the most hostile witness, is entitled to respect and to be treated with dignity. Attacking, ridiculing, insulting, or demeaning a witness or other participant has no place in any administrative or other judicial process.

Punctuality At any hearing, being punctual does not mean you arrive right on time. Arrive early; five minutes, ten minutes, maybe more, in order to wrap up the last of the preparations with witnesses, to organize exhibits, review notes, even to re-arrange furniture to meet the needs of that particular hearing.

Subsequent Steps after the Administrative Hearing

Decision of the Hearing Officer After both parties have had the opportunity to present evidence, question witnesses, and, generally speaking, participate in the administrative hearing process, the time has arrived for the hearing officer to make a decision. In some hearings, the decision will be rendered then and there (e.g., child care licensing) with written notice of the decision provided later. In other hearings, the hearing officer may let the parties know the testimony, evidence, and arguments will be taken under advisement and a decision will be rendered at a later time. For those cases in which the decision will be communicated later, the hearing officer should advise the parties what to expect and when to expect it. Specifically, the hearing officer will render a decision outlining both findings and conclusions. Within a specified period of time that decision will be communicated to the parties involved. In some situations the decision of the hearing officer is simply a recommendation to another individual with the authority to take the appropriate administrative action. In other situations, the determination of the hearing officer is the sole and final decision that is communicated to the parties and relied on in the event of an appeal.

After certain administrative hearings (e.g., termination hearings), the record of the hearing and all evidence are reviewed for legal sufficiency by the appointing agency director or a designee. This consists of a review of the digital recording made during the hearing, as well as a review of the

41

documents and other exhibits submitted as evidence. A review to determine legal sufficiency simply means evidence and testimony exists so that reasonable minds could differ on the outcome and consideration by an independent hearing officer is needed. A legal sufficiency review is a very, very low threshold and it does not require much evidence to determine that the decision of a hearing officer is warranted to resolve the administrative matter.

Notification of Decision Whether the hearing officer makes a decision immediately at the conclusion of the hearing or at some point afterward, that decision must ultimately be rendered into a writing that provides the impacted party with formal notice of the final decision. Most often, a statute or rule mandates what information must be included in the written notice of decision and how it is to be delivered. For example, the Final Notice of Disciplinary Action communicating whether to discharge a classified employee must be sent either in-person or via U.S. mail and contain the following information:

a. The employee’s name, title, job family descriptor, pay band, user ID number, PeopleSoft number, and division;

b. a statement that the action is taken pursuant to Section 840-6.5(C) of Title 74 of the Oklahoma Statutes and Merit Rule OAC 455:10-11-17;

c. the date, the specific final action taken, and, if discharge is the chosen disciplinary action, the effective date of discharge;

d. a citation of the statute, policy, practice, or procedure violated; e. grounds for discharge including a statement of the act or incident that is the cause

for the discharge; f. a summary of prior discipline, or a statement the employee has no prior discipline; g. the consideration given the employee’s response; h. the Pre-termination hearing officer’s recommendation; i. a notice of the employee’s right to grieve the discharge in accordance with the

OKDHS grievance regulations; j. a notice of the employee’s right to file an appeal to the MPC; k. the address of the MPC; l. the MPC filing time limit of 20 calendar days from date employee receives notice

of the final action; and m. a copy of the MPC petition for appeal form.

The impact of any administrative decision can be far-reaching and impact numerous programs and divisions within the agency. As an advocate acting on behalf of DHS, it would be prudent to find out who else within the agency should be advised when a final administrative decision is

42

handed down. To continue our example of the decision after a termination hearing, copies of the Final Notice of Disciplinary Action, after it has been issued, should be distributed to the following:

a. DHS Legal Services b. Corrective Discipline Manager c. HRM Personnel File d. Finance Division, Payroll Unit

Appeal of the Decision As with any judicial determination, there frequently exists a right to appeal the final decision. Most often, any documented notice of an administrative decision will provide the impacted party with information regarding what rights exist to appeal. Any proper notice should be reviewed to ensure it appropriately provides the correct deadline before which an appeal can be filed, the procedure to be followed in order to appeal, and the forum in which any appeal will take place. For example, the proper forum for an appeal could be the agency head, another administrative agency, a district court, or some combination. The procedure to appeal an adverse decision, as well as the deadlines and forum for the appeal, will vary depending upon the purpose and type of administrative hearing. For instance, the notice of discharge following a Pre-termination Hearing is obligated to advise an employee of that person’s rights to:

a. Grieve a discharge through the agency grievance process or b. File an appeal with the Merit Protection Commission (MPC).

Any notice of discharge must also state an appeal to the MPC must be filed within 20 calendar days of the employee’s receipt of the notice. As an advocate for the agency, you are encouraged to read the notice of decision carefully and make note of any information provided regarding how the decision can be appealed.

An individual’s or entity’s right to appeal may be contingent upon the completion of all earlier steps in the administrative process; a concept called “exhaustion of administrative remedies.” In a nutshell, this means a person or entity may not be able to appeal or continue an appeal if there are other administrative options still available to resolve the matter. This is particularly relevant when a party hopes to appeal from an administrative agency to a district court. Before the court can properly accept a case for consideration on appeal, all other administrative steps and remedies must first be exhausted.

The importance placed on the right being impacted will dictate how far an individual’s appeal rights extend. Again, in the context of a classified state employee, that person can appeal the decision of the Merit Protection Commission to district court. Likewise, an individual denied unemployment benefits due to a final decision by the Oklahoma Employment Security Commission has a similar right to appeal directly to the district court.

43

The process and deadlines for an appeal are usually set forth in the statute, administrative rule, and/or agency policy which applies to the issue addressed in the administrative hearing. If you need more information on appeal rights and what information should be incorporated within any notice of a party’s appeal rights, first consult the legal authority (statutes, rules, and polices) which applies to your administrative issue.

Also keep in mind that appeal rights are often afforded to whichever party is adversely impacted by an administrative decision, including the agency. If an administrative decision goes against DHS and you think the agency may want to consider an appeal of an administrative decision, immediately consult with DHS Legal Services if it is not already involved.

Although uncommon, an administrative decision may not necessarily end with a determination by the district court. An adversely affected party often has the right to appeal the decision of the district court to a higher level of appellate relief. This means an appeal to the intermediate courts of civil appeals as well as the Oklahoma Supreme Court. Again, though it is rare for a case to proceed this far through the appellate courts, it is not unheard of. Some cases can languish for years at the appellate level before being resolved and potentially sent back to the agency for further administrative action. As always, if there are questions about the status of an administrative case, contact DHS Legal Services for guidance.

FAQs

What if the employee is represented by an aggressive attorney and I’m afraid the attorney will object to all of the questions I ask? This isn’t likely to happen, but it may occur once-in-a-while. Often, if the attorney has experience representing classified employees, that individual understands it may be in the client’s interest to get as much information as possible “on the record” rather than to try to prevent evidence from being admitted. Also, the hearing officer will usually help keep lawyers and parties “reined in” so that the hearing will go as smoothly as possible. If a lawyer or party is being difficult, take a deep breath and just try to listen to what is said and respond when asked to.

What happens if the hearing officer decides against the agency after a Pre-termination hearing? If the hearing officer recommends something less than discharge be imposed on the employee, you will probably want to talk to the Discipline Manager and DHS Legal Services about what the next step will be. The agency will sometimes decide not to follow the hearing officer’s recommendation, but more often a decision is made to reconsider what action to take.

44

FAQs (Continued)

What do I do if the affected party does not show up for an administrative hearing? In the case of a Pre-termination hearing, for example, it is important to know before the hearing that the employee was timely served with notice of the date and time of the hearing. Assuming this did occur, and you have not heard from the employee, you may proceed with the hearing, and assume the employee decided not to appear. Many administrative processes proceed in a similar fashion.

What if the hearing officer does not allow me to offer certain evidence that I believe is essential to one of the elements of the case? You should always be very respectful to the hearing officer or ALJ. Very rarely a situation could arise where the ALJ believes that the evidence offered is redundant of previous evidence or disagrees that the evidence offered is necessary to establish an element of the case. Very respectfully, you can state to the hearing officer that you would like to preserve the evidence as part of the record for appeal.

This situation should never pose a problem at a Pre-termination Hearing. You do not need to be concerned with creating a record for appeal at a Pre-termination Hearing because the record is not part of an appeal to the Merit Protection Commission.

What if an issue is raised at the hearing which requires additional investigation before a final decision can be made? If the hearing officer leaves the record open for a set period of time, you must attempt to provide the information requested within the time specified. In the case of a Pre-termination hearing, the final decision must be communicated to the employee within 10 days of the hearing. If you think that you may not be able to reach a decision within 10 days, you should consult with DHS Legal Services regarding how to proceed.

Bits of Wisdom ➢ When giving the opening statement, don’t read the agency’s Notice of Proposed Action

(simply assume the hearing officer has already read it). Instead, give a conversational summary of the facts.

➢ You will find that not all individuals involved in the hearings are truthful about what actually happened. Remember it is not personal and maintain your professionalism in the way you handle yourself.

45

ONE LAWYER’S TOP TEN ADMINISTRATIVE HEARING TIPS 10. Be familiar with the case: Your goal should be to know more about the facts and the

law than anyone else in the room. At minimum, you should know the facts better thananyone else.

9. Keep in mind what the hearing is really about: Even before you prepare a notice of adverseaction, figure out what the case is really about and don’t concern yourself with otherfactors that may be interesting but are irrelevant.

8. Only include facts and policy the Hearing Officer needs to know: The Hearing Officerwill be grateful if you do not provide documents and testimony that are not relevant to theissue that led to the adverse action. Cluttering the record with unnecessary exhibits andtestimony also makes it difficult for the Hearing Officer to understand your explanation ofwhat happened, and why.

7. Tell the story in the order it happened: It is far easier to understand your story if you tell it in the order things happened. It makes your story much more difficult to follow if itjumps forward and backward in time.

6. Avoid pronouns: “I went down the hall and talked to them and then we went to lunch.” Who is “them”? How many are “them”? Are “we” the same as “them”, or some of “them”,or different people entirely? The first time you refer to someone, give their name, title,or function. Then refer to that person the same way each time you mention them. Thishelps the Hearing Officer understand your story.

5. Make sure that, when you tell the story, someone who was not involved in the case canunderstand exactly what happened: The easier you make it for the hearing officer tounderstand your side of the story the more successful you will be. Try out your casepresentation on someone in the office who does not know about the case – then ask themquestions. If they cannot answer your questions, you need to re-tool your explanation.

4. You usually do not need to cross-examine: Unless you are an experienced cross-examiner,your questions usually just give witnesses another chance to tell their story OR yourquestion is not really a question, but is actually testimony. If you want to cross-examine,the rule of thumb is not to ask a question unless: (1) You know the answer; (2) the witnesswill give that answer; and (3) the answer will help your case.

3. Think very carefully about your opening or closing statements and whether you needeither one: In most cases, that Hearing Officer knows what the hearing is about and, at the end of the hearing, understands the evidence and your side of the story. If you feel thatopening or closing is necessary, keep it short.

2. Don’t be intimidated by lawyers: Perry Mason does not live in Oklahoma. They almostalways know less than you do (see #10). The Hearing Officer is not impressed by raisedvoices, sarcasm, or innuendo.

1. Don’t take it personally: This is very difficult, especially when you are attacked personally.However, it appears unprofessional if you show you are upset, especially if you attack back.Becoming defensive and belligerent makes you look unprofessional to the hearing officerand may reduce your credibility.

46

Chapter IV

Special or U

niqueSituations / C

onclusion

Topics covered in this chapter: Settlement Negotiations

Settlement Conferences

Conclusion

IV. Special or Unique Situations

Settlement Negotiations Particularly with the more sophisticated administrative law systems, alternative avenues to resolve the matter may be available. Alternative Dispute Resolutions (ADRs) can be informal and handled within the agency or, in very rare circumstances, even involve a privately retained dispute resolution expert. For example, the Merit Protection Commission may order the parties to participate in a settlement or negotiation conference prior to the case proceeding to an actual administrative hearing.

Settlement Conferences Settlement conferences are designed to help the parties involved in a dispute resolve their differences by coming to a compromise agreement. The hope is that a hearing can be avoided, along with the time, effort, and risk that go along with it.

It is common for DHS to be represented at the negotiation conference by an agency representative and an attorney from DHS Legal Services. The agency representative is a person who has direct authority or has been delegated the authority to represent the agency at the conference. For instance, during the appeal of an adverse disciplinary action, the agency representative may be the person who took the disciplinary action. Alternatively, the Deputy Director might assign the Administrative Field Representative from that region the responsibility of representing the agency.

In typical employment discharge cases, the MPC will likely issue an order for the parties to attend the settlement conference at a particular date and time. The parties are directed to bring a “good­faith written settlement offer” to the conference. The negotiation conference is led by a certified mediator or “facilitator.” The facilitator may be either a member of the MPC staff, or a volunteer from another state agency (usually an HR staff person or a lawyer).

Typically, the facilitator will look at each party’s settlement offer to see if there are any grounds for a possible settlement. If the parties’ positions are too far apart, the facilitator may decide not to share the offers between the parties. The facilitator may then use one of two basic strategies: either separate the parties in different rooms or keep the parties together in the same room. The first strategy allows the facilitator to talk confidentially with the parties and allows the members of one party to discuss matters freely between themselves. The facilitator may go back and forth between the parties, conveying a settlement offer or counter-offers from one party to the other. The second strategy involves an effort to keep the parties talking to each other directly, hoping they will, with the help of the facilitator, come to some sort of agreement between them. There is no obligation to use either method, and it generally falls to the preference of the facilitator which method to use.

47

Typically, the agency’s legal counsel who will be attending the conference will want to talk with the agency representative a few days before the negotiation conference about possible terms of settlement. The attorney and the representative can come to some understanding about the desirability of settling or not settling, and about the terms the agency may agree to settle on. The agency representative may need to talk with someone who has authority to agree to the terms of a settlement agreement prior to the negotiation conference occurring.

The negotiation conference is designed to be informal, and its purpose is to avoid a long and drawn out hearing. There are no witnesses presented or documents produced at a settlement conference. There is no evidence presented or taken, and there is no formal argument about the facts, or the relevant policy. The parties may be asked to explain their positions, which they may see as an opportunity to help the other party see things from their perspective, or better understand their position.

When coming to an agreed settlement, the parties can be creative, and agree on a variety of terms. It does not have to involve a payment of money. A settlement agreement may provide for one party to apologize to the other (though this is extremely rare), or, in employment matters, the agency may agree to reduce the discipline it has previously imposed. The parties can agree upon any number of possibilities. Once an agreement is reached, though, it will be reduced to writing and signed by the necessary parties. In the case of MPC settlements, the facilitator submits the terms of the agreement to the Executive Director of the MPC for approval. If and when it is approved, the agreement becomes binding. The agency representative may be required to take steps to see that the agreement is implemented, such as communicating the settlement terms to the affected employees of the agency.

Conclusion Courts and our constitutions demand due process. For better or worse, however, our legal system is incapable of providing due process by itself. It needs help. Administrative hearings fill in the gap to ensure people and businesses are afforded the protections that justice requires. The role that every individual fills in the administrative process to provide prompt and equitable justice should never be considered unnecessary or unimportant. It is hoped you take the lessons offered in this handbook to heart and incorporate them into your efforts as an advocate on behalf of this agency and the state of Oklahoma.

48

DHS Pub. No. 18-20 Issued 8/2018 This publication is authorized by Oklahoma Department of Human Services Director Ed Lake and printed by DHS in accordance with state and federal regulations at a cost of $292.22 for 63 copies. Copies have been deposited with the Publications Clearinghouse of the Oklahoma

Department of Libraries. DHS offices may request copies on ADM-9 (23AM009E) electronic supply orders. Members of the public may obtain copies by calling 1-877-283-4113 (toll free), by faxing an order to (405) 962-1741, or by downloading a copy at www.okdhs.org/library.