Independent Decision Makers--What to Make of It?

As an Administrative Law Judge and arbitrator, I have felt pressures to conform to the needs or desires of the executive or other party employing me.  I have written about this before, in the context of reminding folks that the judiciary is not so special in this regard.  See A Pressured Judiciary--Fact of Life and Cause for Alarm?  Indeed, it is likely that the tendency to exert pressure--even if inadvertently and/or subtly--is far greater in the administrative or arbitration contexts, where the adjudicatory decision maker is more likely to work closely and regularly with party representatives.  

That is not to say there is something nefarious is going on.  It could be as simple as having a casual conversation about procedure that gently blends into due process questions,
so as to raise ex parte concerns.  It is for this reason that the ALJs and arbitrators I know operate with excruciating care to maintain both the fact and the perception of impartiality. 

But, one does sometimes wonder if our humble, solitary efforts can ever be enough.  In the administrative law context in particular, a number of government bodies--including Albuquerque and our neighboring state of Colorado--have turned to use of an Independent Panel of administrative adjudicators. 

In the past, I have looked upon the idea of an independent hearing officer favorably.   Recent news in Albuquerque has prompted me to revisit the question.  On one hand, we the public were favored for several weeks with news of how the Independent Hearing Office for the City of Albuquerque was running amok.  There, the celebrated independence apparently resulted in a situation in which the Chief Independent Hearing Officer (Roberto Albertorio) and one of his subordinates (Anita Reina), were both engaging in the private practice of law during City office hours.  Search of the Chief's office revealed several credenzas of private files and not a single City file.  Moreover, he clearly was not adequately supervising the conduct of at least one subordinate.  See Albuquerque Journal, 4/24/12, 4/28/12, 4/30/12, and 5/3/12.  

As a result of that fiasco, City leaders and the public now naturally ask how do we ensure adequate accountability of an independent office without oversight.  Unfortunately, another article published about the same time, raises continuing concerns for me about the need for true independence.  Dr. T. Zane Reeves, a contract Personnel Hearing Officer was recently "fired" as a hearing officer.  Id., 5/2/12.  Of course, under the contract, the City likely has the right to terminate Dr. Reeves services.  However, the context is concerning.  

Dr. Reeves had recently ruled, in highly politicized and publicized cases, that two police officers were wrongfully terminated by the City.  Id., 4/2/112.  I have known Dr. Reeves--Zane--for several years, have observed his hearings, and even consider him as a mentor of sorts.  I know his personal and professional character, and also his professional reputation in the community.  He does not engage in conduct that gives rise to any appearance of impropriety, and is even handed in his treatment of all parties.  

Ultimately, if contracts like Zane's can be terminated at will there will be little recourse, and we contract hearing examiners typically take these things in stride.  However, it is not a stretch to imagine that this could have a chilling effect on the decisions of similar hearing officers in the future.  

Can a sensible solution be found where independence can be retained, while still providing for adequate oversight?  In the balance between the two lies two great public concerns:  the guarantee of an impartial hearing and the wise utilization of public resources. 

If you are interested in independent arbitration or contract ALJ services--or want to avoid that entirely and try mediation instead, please contact Pilar Vaile, P.C. at (505) 247-0802 or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.

Albuquerque, NM