In administrative law, there are three basic points of focus for the Administrative Law Judge (ALJ) or hearing official to consider, in fulfilling his or her role of conducting a hearing and rendering a decision. I'll call these "the Three Rs:" the Record, the "'Riting" and the Remedy.
In conducting the hearing, the ALJ must consider the extent and nature of the record to be made. In issuing his or her decision (or recommendations) the ALJ must consider the relevant standard and audience of the written decision, and what is the appropriate remedy in a given case. In many cases, these considerations will depend on the relevant law, or the culture or practice within the agency. The following also addresses a number of additional questions that will frequently arise in creating the record, writing the award or crafting a remedy.
The Record
Creation of the record raises three primary issues: adequacy of the record, admissibility of evidence, and post-hearing supplementation of the record.
A. Is Development of a Full and Fair Record Necessary?
For me, one of the most fundamental question I have faced as an ALJ is whether the record being made is "adequate." This raises the thorny issue of whether and how much the ALJ should question the witnesses and require the production of evidence. At one end of the spectrum, it can be argued that the ALJ should never ask questions or solicit evidence because that conduct can raise a perception of bias. This may be particularly true where the ALJ asks a question or seeks a document that neither party apparently wanted in the record, and where the answer may be dispositive in whole or part to an important finding. At the other end of the spectrum, it can be argued that the ALJ is required to actively develop an adequate record, to ensure a sound decision; to ensure that the matter can be adequately reviewed on any subsequent appeal; or even to meet constitutional due process standards.
One factor that ALJs regularly consider in resolving this question is whether one or both parties are represented by counsel. If both parties are represented by counsel, the ALJ may (and likely often does) take the view that it is counsel's job to develop the record as they see fit, and the ALJ's role only to rule on the record so developed. If the parties are appearing pro se, however, there may be a real risk that an adequate record is not being developed due to the parties' lack of legal knowledge or comprehension of the factual and legal issues raised. If only one party is represented by counsel a particular twist arises--although there will still likely be issues related to the pro se party's lack of legal understanding/knowledge, the ALJ's questions could, arguably, create an appearance of bias in favor of the pro se party.
In navigating these difficult issues, many ALJs will base their decision to question a witness or request specific document on whether his or her efforts are done to clarify the record, rather than to develop it. In some cases, it may be a fine line. In my own practice as an ALJ, I confess to starting off too aggressive in developing the record as a "baby" hearing official in 2005. My intentions were good: I just wanted to get to the "truth" of the matter. But, over the years I came to recognize that my good intentions could just have easily paved the way to, well, you know where. Accordingly, in most cases I no longer work to develop the record per se today, but I do still liberally ask questions necessary to clarify a witness's prior testimony. I will also still request documentary evidence if it has been widely discussed, and signal to the parties where I believe a gaping hole is being left in the record from which adverse determinations could be drawn.
That said, some cases may call for a different tact. For example, under the New Mexico Public Employee Bargaining Act (PEBA), NMSA §§ 10-7E-1 et seq., in representation cases--cases concerning union representation, versus complaints of violation of the law or "prohibited practice complaints" (PPCs)--the hearing examiner is specifically required to "take evidence sufficient to make a full and complete record on all unresolved unit issues and any other issues necessary to process the petition." See NMRA 11.21.2.19(C). That is because no one bears the burden of proof in representation cases, unlike in PPCs, so they are not "adversarial," strictly speaking. See NMRA 11.21.1.22. Similarly, in the non-adversarial Social Security disability proceedings, the ALJ is required under case law to develop a full, and fair record of the proceedings. See http://www.disabilityattorney.net/ssd-trial-proof-evidence-faq.php#9.
Many other statutes, ordinances or regulations however will be largely silent and unhelpful as to how much or little the ALJ should work to develop a full and fair record. See, e.g., State Personnel Act, NMRA 1.7.12.18 (silent on issue); and Albuquerque Personnel Ordinance, § 3-1-25 and associated Rules of Procedure (also silent). In these cases, the ALJ must use sound discretion and be mindful of the appearances of his or her conduct, but questioning witnesses will not be a priori forbidden on inappropriate. Compare NMRA 11.21.3.16 (under PEBA regulations, the hearing examiner, "in his or her discretion, may examine witnesses, call witnesses, or call for the introduction of documents").
As a closing note, much of the foregoing considerations are arguably in contrast to what is taught at the National Judicial College (NJC). At the two-week "Administrative Law: Fair Hearing" course, NJC faculty generally teach that "there is always the need for a full, completed record," and that "this is part of providing 'full' due process rather than minimal due process." See Aug. 21-31, 2006 Course Materials, Ch. 28, p. 1. However, I have come across no case law supporting this proposition, and I submit it is an aspiration goal only and one that will not always be appropriately sought.
B. Does All Relevant Evidence Come in "For What It's Worth"?
Next, whether the ALJ actively works to develop a full and fair record or leaves it to the parties, there will necessarily be questions of admissibility.
Most administrative proceedings are designed to be more informal than a judicial trial, so do not apply the technical rules of evidence. Instead, ALJs are usually permitted in their discretion to admit any relevant evidence, including hearsay, with two main exceptions or qualifiers, discussed below. Relevant evidence is generally understood as being that which makes a material fact in dispute more or less likely. See Federal and NM Rules of Evidence, Rule 401.
These standards will be laid out in varying specificity and emphasis of language in the different regulatory schemes. However, even where these standards are not expressly laid, I submit that they should nonetheless be applied by ALJs as a "best practice," because consistent with established due process principles. See:
- NM Administrative Procedures Act, § 12-8-11(A) ("[t]he rules of evidence as applied in nonjury civil actions in the district courts shall be followed" but "[w]hen necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs");
- Federal Administrative Procedures Act, 5 U.S.C. § 556(d) ("[a]ny oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence");
- PEBA regulations, NMRA 11.21.1.17(A) (technical rules of evidence do not apply but irrelevant, immaterial, unreliable, unduly repetitious or cumulative, and privileged material shall all be excluded upon timely objection);
- State Personnel Regulations, NMRA 1.7.12.18(G) ("strict adherence to the rules of evidence" is not necessary, and evidence shall be admitted provided it is relevant to either the allegations raised in the notice of contemplated action or final action, or the issues set forth in the pre-hearing order);
- Albuquerque Labor-Management Relations Ordinance, § 3-2-10(A) ("[t]he hearings shall be conducted in an orderly and informal manner without adherence to the technical rules of evidence;" and
- Albuquerque Personnel Rules of Procedure, § 9(I)-(J), (L) ("[t]he hearing shall be conducted in an orderly and informal manner without adherence to the technical rules of evidence," and "[t]he hearing officer may admit and give probative effect to any evidence ... as the hearing officer deems appropriate," other than incompetent, immaterial, irrelevant or unduly cumulative evidence, provided it concerns the grievance and discipline imposed).
As to the two exception or qualifiers mentioned previously, first, the evidence may not be privileged or otherwise excluded, which some of the foregoing schemes mention. This principle has raised interesting questions in the labor field, where management is usually represented by counsel, but the union is often represented by a union business agent. In this case, counsel's work product is subject to exclusion as work product, but what about that of the business agent? Relatedly, should the two types of representatives be held and subject to the same standards? The business agent is typically quite savvy in labor law and hearing procedures--sometimes even more so than general counsel who may be more used to dealing with purchasing contracts than the arcane ins and outs of labor law!
There is no clear answer, but when I was with the PELRB I did typically hold both types of representatives to the same or similar burdens. I did this to avoid the appearance of bias by allowing an uneven playing field that did not "make sense" as it might occasionally with the more typical, inexperienced pro se representative.
Second, although any relevant and non-privileged information may come in, due process frequently prohibits an ultimate finding or conclusion from being based solely on evidence that would not otherwise be admissible in a court of law. This is known as the "legal residuum rule," which is still alive and kicking in some jurisdictions, but dead or modified in others. Under New Mexico case law, the legal residuum rule applies only in cases where a "substantial right" is at stake, such as one's ability to earn a livelihood. See Trujillo v. Employment Sec. Comm’n, 94 N.M. 343, 344 (1980); see also State Personnel Regulations, NMRA 1.7.12.18(G) (although strict adherence to the rules of evidence is not necessary, "there must be a residuum of legally competent evidence to support a verdict in a court of law").
Obviously these two exceptions or limitations by themselves do little to limit the record so an administrative record can be quite a broad and sprawling thing. For many ALJs and practitioners, that raises a natural question of what the relative value of the evidence will be. For instance, many an ALJ has been heard to say "I'll admit it for what it's worth." Well, what does that mean exactly? Will the parties know how to frame and focus their post-hearing arguments if much of the evidence is admitted "for what it's worth?"
This point is important in two respects. First, as NJC faculty point out and as already alluded to, it simply is not helpful to the parties. For that reason, I have also been known to signal to counsel when I think evidence, although relevant and non-privileged so therefore admissible, is nonetheless not particularly probative or robust. Second, in my opinion, an ALJ should not let everything but the kitchen sink come in, under a standard of marginal relevance, solely to appease counsel. Beside confusing counsel, this will also needlessly complicate the ALJ's job in preparing the report or decision, since he or she should ideally address and deal with any such evidence received. Instead, the ALJ should consider excluding marginally relevant evidence wherever possible as unduly repetitious or cumulative.
C. Is Supplementing the Record Permitted or a Good Idea?
Most of the regulatory schemes either permit or do not prohibit the parties from supplementing the record with evidence and/or post-hearing briefs after the close of the hearing:
- NM Administrative Procedures Act, § 12-8-11(J)(1) (the parties may submit post hearing briefs including proposed findings of fact);
- Federal Administrative Procedures Act, 5 U.S.C. § 556(d) (silent on this issue);
- PEBA regulations, NMRA 11.21.2.20 and 11.21.3.17 (parties may file post-hearing briefs within 10 days of close of hearing, upon request);
- State Personnel Regulations, NMRA 1.7.12.19 (hearing officer may require or permit post-hearing briefs and/or proposed findings of law and conclusions of law);
- Albuquerque Labor-Management Relations Ordinance and regulations (silent); and
- Albuquerque Personnel Rules of Procedure, § 10 (same as State Personnel Regulations, except that they must be filed within 15 days of the close of the hearing).
Although PEBA regulations are silent as to evidence, I would allow or require the parties to supplement the record from time to time, as I deemed it appropriate within my discretion. I imagine other ALJs and hearing officials do so as well.
That said, I could imagine an argument being made by some enterprising advocate that because an administrative agency is limited to action authorized under its originating statute, it would be prohibited from allowing a record to be supplemented if not provided for under that statute. As crazy as that notion may sound to some, the "old" N.M. Public Employee Labor Relations Board once held that it could not reconsider a decision because not expressly authorized to do so under PEBA, although the new Board has since, rightfully in my view, assumed it has such authority. See New Mexico State University Police Officers Association and New Mexico State University, 1 PELRB No. 13 (Jun. 14, 1995), and AFSCME Council 18 v. Department of Health, 06-PELRB-2007 (December 3, 2007).
My question for you is, assuming the record can be supplemented, whether and when an ALJ should do so? One best practice emphasized by NJC faculty is getting your decisions written sooner than later, while the proceedings are still fresh in your memory. In contrast, leaving the record open necessarily entails a delay in finishing your decision. Assuming the other party will need to respond to that submission, and a further reply etc. may be appropriate, the record could be left open for quite some time. Personally, I address that twofold. First, I generally only permit the record to be supplemented if the evidence is particularly salient and probative of a dispositive issue. Second, I do not wait for the record to close before beginning to write my brief.
In fact, my "dirty little secret" is that I do not even wait for any post-hearing briefs. I begin writing my findings of fact as soon as possible at the conclusion of the hearing, while my recollection is fresh. Additionally, although I carefully consider and weigh the arguments in the parties post-hearing briefs' after the basic draft facts are written or outlined, I do not typically read the briefs in depth before then because I do not want to be "unduly influenced" by the parties' necessarily biased take on the evidence. Because of the necessary bias, I also would not seriously consider relying on the parties to submit proposed findings if not required to, and did not do so when with the PERLB which is exempt from the NM Admin Procedures Act. See § 12-8-23.
The Writing
Writing the award raises a number of separate but related issues: what and how much to include and in what format it should be written; to whom should it be written; and under what standard will it be reviewed.
A. What Does it Include, and What's the Format?
Most regulatory schemes will specifically state what is required in an ALJ or hearing official's decision or report. As is apparent from that first sentence, schemes vary as to whether it shall in fact be a decision, binding on the parties unless appealed, or whether it shall be only a report of findings and/or recommendation made to the reviewing board for their final determination, or some hybrid in between.
That question may be determined upon review of the content requirements, or the regulatory scheme may state quite simply whether it is a decision or recommendation. However, that is not always the case. Compare the following provisions:
- NM Administrative Procedures Act, § 12-8-12 ("[a] final decision or order in an adjudicatory proceeding shall be in writing or stated in the record;" either "[a] final or tentative decision shall include findings of fact and conclusions of law, separately stated," and "if ... a party submits proposed findings of fact and conclusions of law, the agency shall rule upon each proposed finding and conclusion");
- Federal Administrative Procedures Act, 5 U.S.C. § 557(b)-(c) (all decisions shall contain "findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record; and the appropriate rule, order, sanction, relief, or denial thereof;" initial decisions "become[] the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule;" and parties are entitled to submit proposed findings of fact and conclusions of law, and reasoning therefore, and if they do they must each be ruled upon);
- PEBA, NMSA § 10-7E-12(C) and PEBA regulations 11.21.1.2.21 - .22 and 11.21.3.18 - .19 (stating respectively--and arguably conflictingly--that: "the examiner shall prepare a written report, including findings and recommendations, all of which shall be submitted to the board ... for its decision;" and "[t]he report shall make findings of fact, conclusions of law, and recommendations for the determination of issues, and shall adequately explain the hearing examiner's reasoning," which shall be forwarded for the board's review only in the event it concerns bargaining unit determination or a PPC that is appealed);
- State Personnel Act, NMSA § 10-9-18(E) ("[t]he hearing officer shall prepare and submit to the board a summary of evidence taken at the hearing and proposed findings of fact); and
- Albuquerque Personnel Rules of Procedure § 11 ("Recommended Decision: The hearing officer shall normally submit the hearing officer's findings of fact, proposed conclusions of law and a recommended decision to the Board").
[The one outlier from this group is the Albuquerque Labor-Management Relations Board, which ordinarily hears its own cases and writes its own decisions, See Regulations, § 4.9 - 4.11, as do other local labor boards in New Mexico.]
Where a standard format is not stated or provided for an ALJ or hearing official's decision or report, the NJC proposes the following format as a best practice:
1. Introduction or Statement of the Case. This will usually identify the parties, the basic nature of the dispute, grounds for jurisdiction, and the ultimate legal conclusion(s), disposition or recommendation.
2. Findings of Fact. Essentially, my findings of fact are a summary of evidence, but not a simple narrative recitation. Ideally, a single sentence or paragraph should address only one fact or concept, and you then build findings upon each other guided by the framework or elements of the relevant legal standards. This section is not properly a recitation of "Witness X said," and "Witness Y testified that." Though it seems obvious, it always appears to bear repeating: what the witness says is not a finding! Rather, your findings are what you draw from all that was testified and admitted into evidence. In the more difficult cases, I will parenthetically reference the witness(es) and/or documents on which I rely in making the particular finding.
3. Analysis. This section includes the relevant principles of law, and provides the reasons why you found as you did, such as explaining any credibility determinations. It also provides the reasons why you will draw the legal conclusions you do, from the stated facts. For me, this part can be shortened considerably by well drafted and logically sequential findings of fact. This section can, however, still get quite lengthy if either the rules of law are novel or disputed, or there are serious credibility issues to resolve.
4. Conclusions of Law. If your findings of fact are done right--meaning they are well drafted and logically sequential--your legal conclusions should follow naturally, even inexorably from what you have already found, once the correct standards of law have been identified.
5. Order or Recommendation(s) for Remedies. The decision must include a determination that the complaint is or should be granted or denied and, if there was a violation of law, an appropriate remedy. Appropriate remedies are discussed below.
While this format may seem clunky or difficult at the outset, I have traditionally used this format--except when I varied from it a bit based on the needs of the case--and have found it very helpful to structure and organize my thoughts and impressions.
Finally, a question related to "what to include" may be "how much." I admit to typically writing longer decisions than some of my peers. As you can see by the format I use, it is a comprehensive one--that may be why in part. More fundamentally, however, I believe both the parties and the reviewing body/bodies are best served by a decision or report that accurately captures and relays all of the main facts and arguments presented, as will be discussed below.
For samples of decisions I have issued utilizing this format or variations thereof, see my website at www.pilarvailepc.com.
B. Who is Your Audience?
As a threshold issue, why does the question of audience matter? Because it dictates who you are writing to, and that in turn will strongly influence how and what you will write. For me, the audience for any administrative report and/or decision will necessarily include (a) the parties, with a particular emphasis on the losing party; and (b) the reviewing body.
I write to the losing party by explaining the reasoning for ruling as I did, and demonstrating that all the factual and legal issues dear to the party's heart were considered and addressed, even if only very briefly and/or if found to be irrelevant. In my experience, a hearing examiner who does this can reduce his or her appeal rate by half, easily. Additionally, the parties will be well served on appeal by a well written report because they will now how to craft their arguments on appeal--that can be impossible if ALJs gives no indication of how or why they rule as they did.
I write to the reviewing body by producing a sufficiently comprehensive report that the Board or other body can feel confident that the Report fairly and reliably captures the essence of the evidence presented at the hearing on the merits, and that the decision would pass muster on appellate review. As I've noted elsewhere, a thorough written description of the evidence introduced, admitted and/or relied on in proposing findings of fact and recommendations can minimize or eliminate the amount of time a reviewing board must spend reviewing transcripts and exhibits itself, if it avails itself of that option. Cf. State Personnel Board Rules, NMRA 1.7.12.22 (the Board "may consider the record" and may put questions to the hearing officer, but it is only required to formally review the record if it determines credibility is at issue and must support its decision which, presumably, is at variance with the supported hearing examiner's decision). Similarly, I believe an overtaxed court might also tend to rely more naturally on a seemingly comprehensive and thoughtful decision than a patently sloppy or incomplete one.
Note again, however, this is at variance with NJC teaching, which holds that a reviewing body is required to carefully review the whole record to meet the whole record, substantial evidence and/or due process standards. See Discussion, 2006 Fair Hearings Course. In contrast, as a practical matter, I believe it is unrealistic to expect volunteer boards, or overburdened district courts sitting in an unfamiliar appellate capacity, will re-comb through the record in the absence of some flag suggesting it is warranted.
C. What is the Standard of Review?
As already intimated, the writing is also influenced by the standard of review. Specifically, the ALJ wants to persuade any reviewing agency and/or court that the Report or Decision is a factually and legally sound one that will meet the appropriate standard of administrative review.
In all administrative appeal schemes of which I am personally aware, the standard of review on appeal will essentially be whether the decision is:
(1) arbitrary, capricious or an abuse of discretion;
(2) not supported by substantial evidence on the record considered as a whole; or
(3) otherwise not in accordance with law.
See PEBA 10-7E-23(A). See also State Personnel Act, § 3-1-25(F); Albuquerque Personnel Ordinance, § 3-1-25(F); Albuquerque Labor-Management Relations Ordinance, § 3-2-10(D) (incorporating District Court Rules of Appeal by reference); and Federal Administrative Procedures Act, 5 USC § 706, NMSA § 39-3-1.1, NMRA 1-074 and 1-075, concerning administrative appeals generally (all essentially the same except that some add a slightly redundant provision for fraud by the agency and/or acting in excess of agency authority).
As you can see, this is a narrower scope of review than in traditional judicial actions. However, it may be helpful to compare the still narrower scope of review provided for in most arbitrations. An arbitration award is only reviewable for procedural or legal errors, such as corruption; fraud; misconduct or evident partiality by an arbitrator; denial or rights of notice or opportunity to be heard; or that the arbitrator exceeded his authority. See NM Uniform Arbitration Act, §44-7A-24(a).
The Remedy
The final consideration for an ALJ is the appropriate remedy in a given case. This is an oftentimes frustrating question for ALJs, as administrative remedies are not generally expansive or innovative, although there are some exceptions.
A. What "Administrative Remedies" are Allowed?
In the labor and employment fields, the basic goal is to "make the party whole," which usually involved backpay and/or reinstatement for wrongful terminations or suspensions. It could also include removing items from the personnel jacket in personnel matters, or issuing bargaining orders or ordering postings of declarations in labor matters. But that is generally it. Although some boards have also allowed cost and injunctions, others have not, so it is not a reliably established remedy.
Some statutes, such as the NM Public Employee Bargaining Act and the Albuquerque Labor-Management Relations Ordinance are worded rather broadly and vaguely. PEBA, for instance, states only that the Board "has the power to enforce ... [PEBA] through the imposition of appropriate administrative remedies." See NMSA § 10-7E-9(E). Similarly, the Labor-Management Relations Ordinance states that Board "shall order such necessary relief as is consistent with the evidence." See City Ordinance, § 3-2-10(B).
However, administrative remedies are generally understood as being far narrower than the remedies available in civil litigation, and particularly in a tort or personal injury action, as area neutral Rita Siegal, JD advises. This view is borne out by case law and other, more narrowly drawn statutes.
For instance, notwithstanding the broad language of the State and City labor laws, the State Labor Board has concluded "appropriate administrative remedies do not include attorney’s fees or punitive damages, and it and the City Labor Board have rarely entertained remedies beyond postings, reinstatement or backpay in the last ten years. See AFSCME & Los Alamos County Firefighters v. County of Los Alamos, 1 PELRB No. 3 (Dec. 20, 1994); see also my documents published elsewhere, Summaries of Local Board Decisions and Keyword and Phrase Digest for Public Sector Collective Bargaining in New Mexico, entry for "Administrative Remedies--Appropriate Remedies."
Similarly, otherwise similar regulatory schemes expressly speak only of backpay and reinstatement. See Albuquerque Personnel Rules of Procedure, § 13 and Albuquerque Labor-Management Relations Board Rules, § 4.11.
B. Practical Application--Considering Extenuating and Aggravating Factors
Notwithstanding the foregoing, the crafting of appropriate remedies can still involve some finesse, at least in employment or personnel matters.
In particular, area neutral T. Zane Reeves, PhD, Human Resources Professor Emeritus with the University of New Mexico, advises that a personnel hearing examiner, much like an arbitrator, may be called up to exercise his or her discretion in looking at circumstances surrounding the discipline or the course of employment. For instance, Dr. Reeves advises that the hearing examiner may weigh mitigating or extenuating factors in recommending a modification of discipline to a lesser penalty. Similarly he or she may weigh aggravating factors, in determining that the goal of reform and rehabilitation would not likely be met by reducing the discipline.
For additional examples of this type of analysis, see my Keyword and Phrase Digest for Public Sector Labor Arbitration in New Mexico, under the entry of "Just Cause."
For additional examples of this type of analysis, see my Keyword and Phrase Digest for Public Sector Labor Arbitration in New Mexico, under the entry of "Just Cause."
If you are interested in obtaining contract ALJ or hearing officer services, please contact Pilar Vaile, P.C. at (505) 247-0802 or info@pilarvailepc.com. You can also view representative Decisions/Reports, an article further explaining administrative adjudication procedures, and other items on our website at www.pilarvailepc.com.
