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© Copyright 2016, All Rights Reserved.

Administrative Hearings: Fair Processes that Courts

Love

Seminar Topic: This material will provide a short primer on representing

administrative bodies in hearing processes. The areas to be covered

include: (1) initiating the hearing process, (2) the hearing process itself;

and (3) the decision.

This material is intended to be a guide in general. As always, if you have

any specific question regarding the state of the law in any particular

jurisdiction, we recommend that you seek legal guidance relating to your

particular fact situation.

The course materials will provide the attendee with the knowledge and

tools necessary to identify the current legal trends with respect to these

issues. The course materials are designed to provide the attendee with

current law, impending issues and future trends that can be applied in

practical situations.

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Disclaimer: The views expressed herein are not a legal opinion. Every fact situation is different and the reader is encouraged to seek legal advice for their particular situation.

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Author’s Email Address: [email protected]

Author’s Website: www.ottosenbritz.com

Author’s Mailing Address:

1804 North Naper Boulevard, Suite 350

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Author’s Phone Number: 630-682-0085

About The Author Carolyn Welch Clifford has devoted her legal career to the representation of local governments in Illinois with a special emphasis on legal issues involving the fire service. In her practice, Ms. Clifford primarily represents public pension funds, fire and police commissions, and fire protection districts.

In her practice, Ms. Clifford is actively involved in legal issues regarding the management of public pension funds. Ms. Clifford has extensive experience in handling firefighter and police disability pension matters from the initial hearing stage to appellate review. Her experience with employment matters from the initial hiring stage through disability and retirement provides her a unique perspective in advising clients. Ms. Clifford has handled a number of appellate cases and argued before the Illinois Appellate Court. Her appellate cases have included several issues of first impression.

Ms. Clifford is the editor of the firm’s newsletter, Legal Insights for Pension Boards. She contributes articles to a variety of publications. Ms. Clifford is a frequent speaker on pension and employment issues, and developed and served as a lecturer for two modules of Northwestern University’s 32-hour public pension trustee training course. Ms. Clifford is an active member of the National Association of Public Pension Attorneys and serves on its Public Safety Affinity Committee. Ms. Clifford received her J.D. from the University of Illinois, and has been admitted to the bars of the State of Illinois and the Federal District Court for the Northern District of Illinois.


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Administrative Hearings: Fair Processes that Courts Love

A short primer on representing administrative bodies in hearing processes

Part One: Initiating the Hearing Process Part Two: The Hearing Process Itself Part Three: The Decision

Part One: Initiating the Hearing Process

When do you need a “hearing”?

The taking of a property right or denial of a benefit may entitle an individual or an entity to a “hearing.”

How are hearings initiated? In some cases, initial determinations are made by the staff of an

administrative agency. Appeals of those staff decisions are then taken to a hearing officer who then makes recommendations to uphold or reverse the staff’s decision in a hearing process.

In other cases, determinations are made directly by the governing body (the board) through a hearing process.

How formal must the hearing be? Some administrative agencies provide by a formal hearing process

by statute and regulation. In many cases, hearing officers are appointed to handle hearing processes.

Other administrative agencies use administrative law judges, the board or staff to make the final administrative decision.

Hearing processes may be subject to state statutory administrative procedures – know your applicable rules.



Some administrative hearings are relatively informal and unstructured.

Some administrative agencies promulgate their own hearing procedures.

Access to applicable procedural rules by the applicant is important.

Keeping a record of the proceeding Recording or transcription by a court reporter? Considerations of cost Fundamental matter of due process A record must be available for review for the initial decision

maker and for the court on appeal

Presenting the record to the decision maker for hearing Where staff has made a decision, a hearing officer re-determine

the initial decision “de novo” -- on the record presented to the decision maker by the parties to the hearing.

Due process requires more than mere affirmation of the initial denial.

Record usually consists of relevant documents gathered by staff which it reviewed to make the initial decision.

Applicant may be able to add new documents. Documents may be added when collected by pre-hearing review

by the agency’s attorney. Use of subpoena p0wer or releases by applicant to secure

documents.

When a case is not ripe to proceed to hearing Clear mistake, then return to administrator for reconsideration



Avoiding ex parte communication in preparation for hearing Impartiality of the decision maker is essential -- Ex parte

communication with the parties not permitted. Hearing officers are often required to abide by the Model Code of

Judicial Conduct for Administrative Law Judges.

Part Two: The Hearing Process Itself “A fair hearing before an administrative agency includes the opportunity to be heard, the right to cross-examine adverse witnesses, and impartiality in ruling upon the evidence.” Illinois Supreme Court in Abrahamson v. Illinois Department of Professional Regulation, 153 Ill.2d 76 (1992)

Essential Due Process Elements of the Hearing Process Neutral, impartial decision makers Opportunity to be heard Right to cross examine adverse witnesses Meaningful opportunity for applicant to hear and see entire

proceeding, and to respond to everything presented at hearing

Structure of hearing process “Hearing” is a flexible concept varying from very trial-like to very

informal conferences. An administrative agency has some discretion in structuring its

hearings. Considerations of cost will be a factor in deciding “how much

process is due” – balancing right to hearing with agency’s need for efficient decision-making



Neutral, Impartial Decision Makers Definition of “neutral” Favoring neither; disinterested; treating all alike Equitable, fair and just Maintaining an open mind in considering issues that may come

before the adjudicator

Definition of “impartial” Not engaged on either side; not taking an active part with either

of the contending sides Unbiased Absence of prejudice in favor of – or against – particular parties

Appropriate demeanor in hearing Be dignified and courteous Be efficient and businesslike, while also being patient and

deliberate Refrain from oral communications -- as well as facial expressions

and body language – that give appearance of bias Avoid prejudicial behavior, such as being overly deferential or

familiar with one person, or being disrespectful or demeaning to a person

Qualifications for Administrative Hearing Officers/Law Judges Qualifications set by state statute or agency rules (for example,

Illinois Administrative Procedure Act, Section 10-20, “Qualifications of administrative law judges”)

Disqualifications for bias or conflict of interest (for example, Illinois Administrative Procedure Act, Section 10-30)

Dilemma for board members in their “quasi-adjudicative” role In some administrative situations, board members are elected

from the membership of agency and/or appointed by an interested party.



“Divided loyalties” are created by simultaneous service as an employee or member, as well as a board member.

Competing Fiduciary Responsibilities Board members must balance their “competing fiduciary

responsibility” to both the applicant and to the entity itself.

Fairly Judging the Matter Adjudicators sometimes know something about the underlying

facts of the application. When a board is involved, members are admonished from

engaging in “investigation” of an application and from engaging in ex parte communications regarding a pending matter.

All adjudicators must be reminded to make their decision based solely on the evidence and testimony received at hearing.

Presumption that Decision Makers are “Fair” Presumption that administrative decision makers are able to

objectively and fairly judge each particular case on its own facts and set aside their own personal opinions.

Because persons serving on administrative tribunals are “presumed to be fair and honest,” an applicant for pension benefits must do more than merely state why an adjudicator might have harbored bias or prejudice.

Proving Bias or Prejudice by a Decision Maker To prove bias or prejudice, an applicant must show that the

decision maker was incapable of judging the controversy fairly and on the basis of its own circumstances.

As a result, it has traditionally been assumed that an applicant has a difficult burden of proof in overcoming a presumption that adjudicators are fair and impartial in the context of a hearing process.

Addressing Potential Conflicts of Interest Potential conflicts of interest should be disclosed on the record by

the decision maker.



When in doubt or in order to prevent a possible error on appeal, a board member may choose to exercise right of recusal.

Recusal lies solely with the board member. Situations Warranting Recusal Where the board member served as direct supervisor of the

applicant and disciplinary actions are pending Where the board member investigated the facts that led to the

application Where the board member is a family member of the applicant Where discussions or activities have occurred off the record that

suggest that the board member is biased

Importance of Following the Applicable Procedures

State statutory requirements for administrative proceedings Internal board rules Applicable statutory “open meetings” provisions in cases where

board or panel (as a “public body” ) is the decision maker

Technical rules of procedure generally do not apply Even in very formal hearings, technical procedures rules – such as

rules of evidence – do not apply or are inconsistently applied. Important for attorneys who represent applicants to know the

“culture” of the process. Hearing officers likely to be lenient on admissibility.



The Unique Challenge of Hearsay Evidence

“Generally, hearsay evidence is not admissible in an administrative proceeding. However, where there is sufficient competent evidence to

support an administrative decision, the improper admission of hearsay testimony in the administrative proceeding is not prejudicial

error.” Illinois Supreme Court in Abrahamson v. Illinois Department of

Professional Regulation, 153 Ill.2d 76 (1992)

Although administrative hearings, as “quasi-adjudicative processes,” are not bound by the technical rules of evidence, they are governed by general notions of fairness.

Admissibility issues Remember that the key is not admissibility but rather the weight

the evidence is given in the final fact-finding. Admissibility is only the threshold question. A common objection in hearings involving medical evidence (such

as where an independent physician’s report determines an applicant is not entitled to a benefit) is an assertion that the medical reports are hearsay and they should not be admitted.

The applicant will further assert that he or she has a right to cross-examine the physicians as a matter of due process.

Part Three: The Decision

“Making it fly”

Process creates a product – almost always a written decision



High quality product should reflect high quality process (show that you did it right) Neutral decision maker Proper notice and full/fair opportunity to be heard Adherence to governing rules (especially agency’s own) Consistent application of law Process, record and law determine outcome

Quality of product matters most when decision is adverse to claimant Explanation of reasoning especially important to

applicant/counsel If appealed, courts want assurance that due process was afforded,

applicant got a “fair shake

Making the Decision

Dispositive issues vs. every single issue

Factual findings must come from competent evidence of record in

this proceeding Consider the whole record Focus on evidence, not presentation or personalities Watch for bias/question assumptions Timeliness

Presentation to Withstand Judicial Review

(Making a court’s life easier) Orientation Recite authority Recite applicable burden of proof Recite steps taken in process, if law prescribes in detail



Structure and Content Elements and format may be prescribed in statute/rule Findings of fact and conclusions of law universally accepted, if not

expressly required - Factual findings: what’s “relevant” to the applicant? - Cleanly separate fact-finding from legal conclusions Logical Sequence - Break down complex sets of facts or law - Findings: Chronology By issue By party or player/actor Legal conclusions: step by step to conclusion supporting order Carefully and specifically explain reasoning for choosing to rely on

certain evidence where: - evidence (particularly opinion evidence) conflicts -

make especially clear where choice is based on reliability or witness credibility

- evidence on a necessary element is less than clear or sufficient (say at least where problem is: amount? quality? relevance?)

Carefully and specifically explain reasoning for choosing to rely on certain law where:

- must choose some law over other law, especially court opinions

- must choose between issues to resolve Show that decision maker heard and understood applicant’s

position and offers of evidence, despite adverse outcome Watch your hearsay

- Admissibility Reliance -- Know your jurisdiction’s tolerance if

- resolving necessary legal elements - relying solely on hearsay evidence - that was admitted over objection



Ask –

What opportunity did losing party have to challenge/examine?

Is it reliable enough? Is it truly relevant/necessary?

Will it be “harmless error”? Language Write to your audience(s) Decisive style: strong simple English Cull out passive voice, nominalizations, legalese, and jargon Neutral, measured language

Big-Picture Review Scope Is decision within bounds of deciding board/agency’s authority?

- Constitutional issues - Other agencies’ jurisdiction

Quality Meets all local requirements?

- If appealed, will pass muster in your jurisdiction’s courts? - Do conclusions follow from facts as found? - Are facts solidly based in record? - Are facts sufficient to support conclusions?

Order

Enter a concise order that leaves no doubt - Who is affected - What is the result - What additional actions are required, if any, and who is

responsible
