Legislature(1999 - 2000)
03/24/1999 01:06 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
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HJR 18 - CONST. AM: ADMINISTRATIVE HEARINGS Number 1558 CHAIRMAN KOTT announced that the next order of business is HJR 18, Proposing an amendment to the Constitution of the State of Alaska relating to an office of administrative hearings. BOB LOEFFLER, Director, Central Office, Division of Mining and Water Management, Department of Natural Resources, testified via teleconference from Anchorage on behalf of the Department of Natural Resources. He stated that the department has a number of concerns about HJR 18. He cited an example of one of the more controversial permitting decisions the department had, and that was a winter road they approved to the Pogo Mine. Approximately 250 people commented on that decision, through two public meetings, and the department needed to balance the private rights of the mine holders against the potential impacts on those who had cabins and used the recreational resources of the area. He pointed out that their standard of review is "the best interest of the public," and this involves a balancing decision rather than a technical decision. He felt that their process was quite inclusive, and an administrative law hearing would disenfranchise those who are unable to participate. For a proper balancing, he noted, the department works hard to include all the citizens of the state, and he was unsure how that would occur in an administrative law hearing. He related that a number of their decisions were reasonably technical, and that technical expertise was also an issue. One of their most recent decisions had to do with fume chemistry, and the project team worked on this issue for two to three months. He felt it would be difficult to educate an administrative law judge (ALJ) on the technical aspects of fume chemistry. He noted that a number of the other, more technical, divisions of the Department of Natural Resources have similar concerns. Number 1780 CHAIRMAN KOTT referred to Mr. Loeffler's comment about the standard of review. He asked, "Would you not agree that that particular standard of review would be somewhat different for every issue, and that an administrative law judge, in his capacity, would be required to know that?" MR. LOEFFLER indicated that he had no doubt the ALJ would know the standard of review. However, the best interest of the public is a typical standard for the Department of Natural Resources. He agreed it would be different for other agencies. Number 1818 DEBORAH VOGT, Deputy Commissioner, Office of the Commissioner, Department of Revenue, testified with concerns about HJR 18. She related that she had a fair amount of experience over the years with state government, and that she was a hearing officer at the Department of Revenue for a few years. She is currently responsible for the formal hearings function at the department, and she has experience working with a number of agencies from the Commercial Fisheries Entry Commission and the Department of Transportation and Public Facilities. She felt this background is part of the reason she was chosen to coordinate the state's response to, and position on, this legislation. She testified that the state had two views on HJR 18: first, that a constitutional amendment requiring administrative adjudications to be performed by a centralized panel would be dangerous. On the other hand, there is some merit to the idea of a centralized panel for some functions. The department envisions some problems with a constitutional approach to this legislation, including a belief that the provision, as it is drafted, would make it mandatory for all adjudicatory decisions to be made outside the agency charged with the primary underlying function. They understand some people argue that the phrase in the proposed amendment "jurisdiction will be prescribed by law" means that the legislature can pick and choose which functions go to the centralized panels and which ones do not. MS. VOGT pointed out that a constitutional amendment is not needed, if the purpose is to simply give the legislature permission to create a centralized panel and assign certain functions to it. The only reason a constitutional amendment would be necessary is if the centralized panel was made mandatory, and she stated that making it mandatory would foreclose the legislature from ever making a specialized solution in any particular area. The courts define "administrative hearing" very broadly, she noted, and an example of that is the litigation surrounding the Constitutional Budget Reserve. For example, in a tax matter, the adjudicatory process starts as soon as a person objects to an assessment that has been issued. In the Department of Revenue, the assessments get issued at a fairly low level; then, at the time of process, it goes into an informal conference. The formal hearing function for tax matters has been transferred out of the department, but the informal procedure still goes on in the department. At that time, they often catch mistakes that were made, and give the taxpayer an opportunity to meet face-to-face with individuals to explain that taxpayer's argument. They read the proposed constitutional amendment to indicate that the early function of the adjudicatory process would also go to a centralized panel, and they would not have the power to make any kind of an adjudicatory decision on a contested matter. MS. VOGT noted that the legislature has spent a lot of time over the years creating different functions in different departments, and HJR 18 would remove a lot of that structure set up for those kinds of decisions. She related that the Department of Revenue handles Permanent Fund Dividend (PFD) appeals, child support enforcement appeals, and appeals in charitable gaming matters, as well as representing the department in front of the Office of Tax Appeals that was created a couple of years ago. Number 2026 MS. VOGT added, "One of the concerns that I have about moving the function out of my agency is management. Four years ago, when I started in this position, and Commissioner Condon started in his position, we had about ... 7000 Permanent Fund Dividend matters pending, between informal conference and formal hearing. Some of those matters were very old." She noted that today there are only about 400 matters pending between the two; almost of them are less than two months old at informal conference, and all are mostly less than six months old. She expressed pride at having achieved that, and she did not believe that could have been done if an outside agency handled all of their appeals. MS. VOGT also had substantive concerns. She pointed out that a lot of individuals win their informal conferences and their formal hearings, and that is because the hearing or appeals officers are properly applying the rules the department has set out. The department has an overall responsibility for making and implementing those rules, she noted, and taking that function away from them would put a hole in the continuity. She related that she learns a lot from those hearings about the way the program is being administered, and about issues that could be clarified, made easier or changed. Ms. Vogt and Representative Green worked very hard to set up the Office of Tax Appeals, at the request of taxpayers, and this is an outside agency that hears the formal hearing level of tax appeals. As the department reads the proposed constitutional amendment, that agency would be subsumed in an administrative law panel. One of the driving forces in the way that program developed several years ago was the universal agreement that the tax cases needed a specialized forum, and tax expertise was important in that forum. That expertise would be lost by sending those cases off to a centralized panel. Number 2150 MS. VOGT summarized by stating, "One size definitely does not fit all in administrative hearings." She felt that it is a mistake to try to fit everything under one approach. Some matters are small and can be handled on a very informal basis, and the concern is that a centralized panel would make matters much more formal and would be intimidating. She did agree that some states have had good experiences with centralized administrative law panels, and she felt it should be explored, but not mandated by a constitutional amendment. Number 2231 CHAIRMAN KOTT asked if there has been any discussion in the years past on reviewing the possibilities to work in this fashion. MS. VOGT recalled that there has been, but just in the last couple of years. It has not, however, been looked at from within the Administration. Number 2254 REPRESENTATIVE MURKOWSKI wondered if the Administration is looking at areas that could be candidates for an administrative law panel as a result of the fact that it has been discussed for the past couple of years. MS. VOGT felt that they are beginning to do so, but that a lot of effort has not gone into that. CHAIRMAN KOTT asked, "In your opinion, could you do that without a statute change?" He wondered if statutory authorization would be required or if this administrative law panel could be set up just through the regulatory process. MS. VOGT said, "I would imagine eventually you'd run into reasons that you needed a statute." She did not think it could be accomplished in its entirety through executive order or that type of route. Number 2333 TERESA WILLIAMS, Assistant Attorney General, Fair Business Practices Section, Civil Division (Anchorage), Department of Law, testified via teleconference from Anchorage. She referred the committee to the March 23, 1999, letter and its attachment, "Analysis of Language of HJR 18," that was sent to Chairman Kott from Attorney General Bruce M. Botelho's office by Ms. Williams. She said she was going to reiterate Ms. Vogt's testimony that a constitutional amendment is not necessary if the intent of this amendment is to provide discretion for the legislature to centralize a hearing officer function, as that is already an authority the legislature has. The problem with a constitutional amendment is that it is a powerful tool that would have superior power to later legislation attempted; therefore, it would limit the legislature's power. She detailed some of the language in HJR 18 that the Department of Law labeled as problematic. MS. WILLIAMS first referred to "The Office of Administrative Hearings is vested with the POWER TO CONDUCT ADMINISTRATIVE LAW HEARINGS," and explained that term is very broadly interpreted in Alaska. The Alaska Supreme Court has said that administrative adjudicative hearing proceedings begin when one party serves another party a document that sets in motion a regulatory or statutory procedure for the resolution of a dispute. She pointed out that testimony given to the House State Affairs [Standing] Committee pointed out that dispute over a term such as "student loan" is the sort of procedure that sets forth a regulatory process for the resolution to dispute. Under this constitutional amendment, it would go to an ALJ. Necessarily, the proceedings would become much more formal, and the agency with the responsibility for the program would lose control over the day-to-day practices of the program. Also, if the Office of Administrative Hearings was established under this language, there would be certain working commissions that would lose their primary function, and those would include the Alaska Workers' Compensation Board, State Board of Parole, all of the licensing boards for occupational licensing, and many others. TAPE 99-19, SIDE B Number 0001 MS. WILLIAMS next referred to the language that stated "The Office of Administrative Hearings is vested with the POWER TO RENDER FINAL AGENCY DECISIONS," which is a misnomer, because the decision would not, in fact, be a decision by the agency, and may be very contrary to the policies of the agency. There would be all sorts of formal disputes within the scope of the proposed amendment, such as tax matters, public assistance entitlement, employee relations, state land allocation, and a number of others. The constitutional mandate would include agencies of the legislature and the judicial branch, as well as the executive branch. Number 0050 MS. WILLIAMS also noted the clause "THE JURISDICTION OF THE OFFICE SHALL BE PRESCRIBED BY LAW." She indicated that this language does not give the legislature the express authority to exempt agencies or certain levels of proceedings from the constitutional mandate. The Alaska courts hold that the identical language for the judiciary does not allow the legislature, by statute, to take away judicial powers vested by the constitution in the courts. MS. WILLIAMS noted that the phrase "THE HEAD OF THE OFFICE IS NAMED 'CHIEF ADMINISTRATIVE LAW JUDGE'" is a new concept for Alaska, as Alaska has always used hearing officers, with the understanding that this term is meant to refer to a hearing that is much less formal than an administrative law judge. Administrative law judges are more likely to use hearing chambers and wear robes, and they are referred to as "judge" and "your honor." Alaska administrative proceedings are intended to be less threatening to the participants. In addition, this language contains no provision for removal of an administrative law judge for cause which would certainly be an issue in cases of misconduct or gross incompetence. Number 0140 CHAIRMAN ROKEBERG observed that it was the third item on the list of concerns that alarmed him the most, "THE JURISDICTION OF THE OFFICE SHALL BE PRESCRIBED BY LAW." He also was concerned that this did not give the express authority to the legislature to exempt agencies or certain levels of proceedings. He asked if there was case law that essentially refers to that particular issue. MS. WILLIAMS confirmed that there was, and she referred to the case Rozkydal v. State. By using identical language in both provisions, in light of the previously-existing case law, the court may find that the voters intended to have identical results. Number 0203 REPRESENTATIVE OGAN commented that other states have done very well with this system; although, he agreed that they did not have to use a constitutional amendment. He asked what a hearing officer should do when they are pressured to find for the agency. MS. WILLIAMS confirmed that no other state has a constitutional amendment that creates an office such as the one proposed in HJR 18; however, the final decision is only made in very few cases. The decision becomes a proposed decision, and is referred back to the agency. As far as pressure being placed on a hearing officer, Ms. Williams pointed out that that would be inappropriate. The hearing officer should advise the parties of the attempt to make that pressure, and they could certainly avail themselves of various protections under state law for employees who are being pressured to do something that is unlawful. REPRESENTATIVE OGAN pointed out that sometimes the pressure might not be overt; however, there is certainly pressure to perform for the commissioner that you work for. He asked, "What if a hearing officer consistently found more often against ... the commissioner he worked for than for him? There is an inherent conflict of interest." MS. WILLIAMS observed that she has been an attorney in Alaska for 20 years now, and she has always worked in the field of administrative law. She related that she has never experienced a hearing officer who felt obligated to rule on behalf of a particular party. The hearing officers that she has known, in various capacities and serving various interests, have issued decisions that they felt to be correct. If there are examples of particular hearing officers who are a problem, Ms. Williams felt that this should be looked into closely; however, she is not aware of any particular person or agency where that has been a problem. REPRESENTATIVE OGAN stated that he sincerely doubts a hearing officer would mention to the attorney general that he/she was feeling pressure to be biased. Number 0350 PAUL GROSSI, Director, Central Office, Division of Workers' Compensation, Department of Labor, expressed concerns regarding HJR 18 on behalf of his division and the Department of Labor. One of their main concerns, he explained, is expertise in deciding these administrative cases. He also referred to the "one size fits all concept" that was previously mentioned. He testified that HJR 18 would take away the balanced approach that has been developed over the years with the Workers' Compensation Board. They are concerned, he added, that this legislation would move away from a "compact" that exists between labor and industry. MR. GROSSI explained that the [Division of] Workers' Compensation is probably one of the earliest quasi-judicial administrative agencies. It was established around the turn-of-the-century to deal with workplace injuries. At that time, work-related injuries were being dealt with in the courts; consequently, they were tying up the courts, causing expense to the employers, and taking a long time for employees to get results. Labor and industry came together and formed an agreement to compact, and legislation was passed to deal with workers' injuries by setting up administrative agencies. Both sides had to give up something, and both sides gained something. The employers gave up the right to defend a case because of fault, as [Division of] Workers' Compensation is a no-fault situation. Employees gave away the right to sue employers in court, and formulas were developed for compensating employees for wage loss, permanent disabilities, and paying for medical losses. On the other hand, industry received an immunity from being sued in court. Both labor and industry received a faster, more predictable way of dealing with these injuries. MR. GROSSI noted that Alaska passed legislation that set up a Workers' Compensation Board for dispute cases to be heard. This board consisted of a labor member, usually someone from a labor union, but always someone from the working side of the formula, and an industry seat, someone from management or an owner of a company. The third member of the panel is the commissioner's designee, and that designee is an expert in workers' compensation law. They feel this a very balanced approach: using private-sector volunteers to decide the cases, along with someone who is an expert in the legal aspects of worker's compensation. He indicated that there is 100 years of case law to refer to, and that volumes have been written about it. In Alaska, there are as many as 10 supreme court cases a year that deal with workers' compensation. The case law is extensive and complicated, Mr. Grossi noted, and it requires a certain amount of expertise, but it also requires some sort of input from the private sector, so that a fair decision can be made. MR. GROSSI disclosed that there are presently approximately 300 to 350 cases a year that are decided by the Workers' Compensation Board. Of that, approximately 70 are appealed to the courts, and the board has a very good rate, over 80 percent, of their decisions being affirmed by the court. The department is concerned that this law will take away from that success rate, will make their law unconstitutional, will take away from the balanced approach, and will eliminate private sector input on their cases. Similar problems could arise in a number of different agencies within the department: Fishermen's Fund [Advisory and Appeals Council]; Alaska Labor Relations Agency; Employment Security Division; and the Department of Occupational Safety and Health Administration. He mentioned that one of the strongest advocates of this system is Edwin Felter (ph), and he believed him to be the head of the National Association of Administrative Law Judges. Mr. Felter (ph) has indicated that there is no state that has not made exceptions for certain types of cases, and not all cases are heard by these agencies. Number 0671 CHAIRMAN KOTT noted that there seems to be some confusion, if HJR 18 were to pass and the voters were to approve it, as to whether or not the legislature would have that opportunity to provide for those exemptions for those certain categories that, perhaps, would not fit the mold very well. He asked Mr. Grossi whether the Department of Labor would support the measure, if the legislature decided to keep them exempt from it in all their capacity. MR. GROSSI admitted that some of the things their department does may fit well with this legislation; however, he would have a difficult time supporting the measure if it had to do with the Workers' Compensation Board. The reason for that, he explained, is because the current system has been developed over a number of years and it works very well. He did express willingness to discuss it, however. Number 0738 REPRESENTATIVE OGAN wondered how long it takes for the Division of Workers' Compensation to adjudicate a workers' compensation case. MR. GROSSI indicated that it would depend upon the individual case. Some cases get heard within 60 days from the date the hearing is requested, and others take longer, depending upon what needs to be done. REPRESENTATIVE OGAN asked what would be determined a long case, and if any have been going on for years. MR. GROSSI replied that these cases are not usually litigated that long, but some cases do go on from the date of injury through when the individual goes off of workers' compensation. It can take some time; it depends upon the extent of the injuries. CHAIRMAN KOTT asked Mr. Grossi, "Would you refresh my memory on the Workers' Comp[ensation] Boards and the time limitations they have to take up a case?" MR. GROSSI answered by stating that the vast majority of injuries are not litigated. There are approximately 26,000 to 30,000 injuries a year; of that, maybe 1200 to 1500 come to the Workers' Compensation Board for resolution. If an injury occurs and a medical report is filed along with the bill, the employer either pays it or controverts the case within 15 days. If the employee disagrees with the controversion, that employee can then take it forward to the Workers' Compensation Board. That employee can file a claim 10 days from that point, and can request a hearing after 20 days. If the opposing party does not oppose the hearing, it will be set up within 60 days. If it is opposed, a pre-hearing is scheduled to deal with why it was opposed in the first place. Number 0858 REPRESENTATIVE CROFT had a question for Teresa Williams, who was still present on-line from Anchorage. He asked, "Would we be able to continue the Workers' Compensation Board with it's one industry, one labor, under this constitutional amendment?" MS. WILLIAMS said no, unless there was authority expressly in the legislature and the amendment to exclude an agency. Number 0883 REPRESENTATIVE OGAN wondered if Ms. Williams was basing that answer on the case law dealing with judicial power vested by the constitution. MS. WILLIAMS explained that she was basing her answer on the language, "THE JURISDICTION OF THE OFFICE SHALL BE PRESCRIBED BY LAW," which she felt was ambiguous as to what it means. She indicated that this language does not expressly give the power to the legislature to exempt an agency or certain level of proceedings. In addition, this is identical language that has already been interpreted by the courts, and it would be presumed that the language was intended to have the same result. REPRESENTATIVE OGAN wondered whether court cases on the judiciary were based on the intent of the constitutional convention. MS. WILLIAMS said no, and pointed out that they go to the first line, which says that the power is vested in the judiciary, just as in this provision, the power is vested in the Office of Administrative Hearings. That language is very powerful and cannot be limited by the legislature. REPRESENTATIVE OGAN said that it was his understanding of the law that a record of legislative intent could be built, indicating that the legislature can decide who is in and out of this provision. MS. WILLIAMS explained Alaska finds that legislative intent is hard to determine and cannot be determined by the statement of a person, because the entire legislature votes on a bill. She pointed out that there is nothing concrete that says what legislative intent is, especially in this case, when a constitutional amendment would need to be voted on by the people. She suggested that it would be preferable if the language were changed to expressly state what is intended, rather than having a side-record in which you attempt to explain what it means. Number 1032 REPRESENTATIVE CROFT observed that the important thing about a constitutional amendment is what the people meant when they voted on it, and that it is not as relevant as what the legislature intended when it put it before the people. He added that the best legislative intent in the world might not be (indisc.), particularly if there is clear language that seems to go the other way. REPRESENTATIVE OGAN felt that was not consistent with supreme court decisions. Number 1080 CATHERINE REARDON, Director, Central Office, Division of Occupational Licensing, Department of Commerce and Economic Development, testified in opposition to HJR 18 on behalf of her division, as well as 21 licensing boards that it represents. Her division also administers 16 licensing programs without boards, so they make the final decisions directly in those cases. She mentioned that the Division of Insurance and the Division of Banking, Securities and Corporations, both under the Department of Commerce, also had concerns, and they use the same hearing officer that the Division of Occupational Licensing does. She acknowledged the sponsor's position that certain agencies or decisions could be exempted through statute; however, the Department of Law has a different view. She stressed that this is a very important issue to the licensing boards, who are created for the express purpose of making decisions like this. She echoed that any attempt to have the legislature exempt different agencies needs to be very clear in any constitutional amendment; otherwise, boards are being asked to support something based on a possibility that the legislature may be willing and able to exempt them. She has based her testimony on the assumption that the Office of Administrative Hearings would be making all the decisions for Department of Commerce, including the licensing boards. MS. REARDON declared that she had testified with concerns about the original comprehensive bill when it was presented by Representative Ogan last year. One reason that it grew into such a large bill, she observed, was because there were references to boards making disciplinary decisions and licensing decisions buried within each occupation's licensing statute. If a constitutional amendment like this passes and certain agencies need to be exempted, the frustrating and difficult work of making those policy decisions in a 100-page bill will still need to be done. Much of what comes up for the hearing officer in occupational licensing involves initial decisions, not appeals. The division gathers evidence and charges a professional with incompetence. Before any action is taken, there is a due process hearing in which the division and the Department of Law present the prosecution case, and the accused professional presents a defense case. The hearing officer then hears the case and makes the proposed decision to the Board of Professionals. The individual has the right to appeal to Superior Court. MS. REARDON informed the committee that the Department of Commerce and its various boards are very concerned that they will be losing expert knowledge by going to an independent administrative law hearing. She gave the example of the medical board, which has five physicians and two representatives of the public on it, being able to actually decide whether the treatment given by a doctor is competent or not. In that case, she stressed the value of having actual doctors involved in making those decisions. Even though a hearing officer can hear expert witnesses, she did not feel sure that would be an adequate replacement for the professional and public input that is present now. MS. REARDON added that another action coming to a hearing officer would be appeals of license denials. Licensing boards are currently deciding if someone is competent for a license, and this often involves very technical decisions about someone's mental health, professional training or problems they have had in other states. She felt that it was valuable having professional peers on the board, and that it is a very significant policy decision to change that system. MS. REARDON related that the director of the Division of Insurance expressed a concern about the cost of training a hearing officer who is knowledgeable about insurance law, which is a fairly arcane subject. The Division of Insurance director does not always use the department hearing officer. In some cases, such as insurance cases that involve tax issues, they have hired a tax accountant from a large firm to preside, as knowledge in a tax law and accounting is crucial to making the right decision. Number 1438 MS. REARDON summarized by stating her belief that this seems to be a switch in philosophy about the definition of administrative appeals. Initially, these hearings have been a chance to ask a department or agency to reconsider, looking carefully at what it is doing one more time, before the case moves to court. By enacting HJR 18, the shift would be towards moving into a more formal court situation right away. She testified that administrative hearings in her department are already very formal from a legal standpoint, using discovery motions, requests to suppress evidence and offer evidence, and other legal motions. She suspected that the original vision, 30 to 40 years ago, was to get the two parties in a room to just discuss what happened and review the situation. She said, "I think we are probably moving into a situation where it ... basically is court, and you better show up with your attorney." She indicated that she was not surprised that there are lot of hearing officers that would like this provision, and that there are number of hearing officers that would like to be judges. She has been requested by hearing officers to provide funding to build a courtroom, complete with flags and a seal, for the Department of Commerce and Economic Development. Number 1568 REPRESENTATIVE OGAN referred to an interoffice memo addressed to Commissioner William Hensley from 1997. He read the following into the record from that memo: Having worked as a part-time administrative hearing officer for the Department of Commerce (since a certain day which I won't disclose ... in the 1980's), there are a number of observations resulting from the tenure which may help the section to continue to function in an efficient and helpful way to the public. ...Before his departure, Frank Flavin and I discussed many of these items. The Hearing Officer section sometimes seems to be an orphaned child, since it belongs to no one, yet serves everyone. It is vitally important that the hearing officer remain a truly neutral and impartial party. To that end, the section should continue to be treated separately, with its own secretary and offices. The officer should not be located within the physical parameters of the Division of Occupational Licensing, since the tendency to engage in casual conversation is too great. In any new space configuration, the department should also consider giving the Division of Occupational Licensing, Boards and Commissions, and the Hearing Officer section, their own separate hearing and meeting room. Since there will now only be one full-time administrative hearing officer, rather than a full-time and part-time position, there will, inevitably, be conflict of interest questions raised. Although there should not be many ... it is my recommendation that the department have one person handle the conflict cases, rather than signing separate contracts to various attorneys. That procedure was tried in [the] early 1980's, resulting in inconsistent results, poorly-written opinions, lost files, missed hearings, and, in general, was unsatisfactory. I would also recommend that any person who is chosen to do the contract have some litigation or judicial background, since it is proven helpful in learning to do hearings... REPRESENTATIVE OGAN summarized the letter by stating that it brings out some interesting points as to how this legislation, HJR 18, came about, addressing general conflicts of interest, neutrality and impartiality. MS. REARDON commented that she had read this letter approximately two years ago, but she does not have perfect memory of it. The decision to go from one full-time and one part-time hearing officer to one hearing officer was based on budget cuts, she explained, and that outgoing hearing officer's suggestions should not be taken to mean that any of her concerns were actually going on. Ms. Reardon testified that she worked in the division at the time the letter was written, and that hearing officer was not housed in the Division of Occupational Licensing; rather, she is reinforcing that it should never happen in the future. The letter was not a request for change, but a request that it does not change. The fact that they feel "orphan-like," she emphasized, is a good sign and means that the system is clean, because they are being left alone without socialization so that they can act impartially. The letter said that they worked for everyone, but were not a specific part of anyone, and Ms. Reardon indicated that is exactly what the goal should be for an impartial hearing officer. MS. REARDON summarized by stating that she did not recall that hearing officer stating, at any time during that letter, that she felt her decisions were influenced, or that there was an attempt to influence any of her decisions, by the commissioner's office or any of the divisions. A new hearing officer has been hired since that time, she explained, and he had to declare a conflict of interest in a couple of cases; however, he simply did not take them and they were assigned to contract hearing officers. There is currently a central hearing officer with a secretary that keeps all of the records of what the contract hearing officers are doing at all times. Ms. Reardon argued that the concern expressed in the letter, regarding having different hearing officers who might not be knowledgeable about the process, is exactly what might happen with a hearing officer office or agency. Number 2011 CHAIRMAN KOTT asked Ms. Reardon how many boards and commissions would fall under this provision, if the legislature had the option of determining whether or not an entity could be replaced. MS. REARDON said there would be 21 statutorily-created licensing boards, or all of them, that would fall under this provision, unless a statute was created to exempt specific agencies. Number 2068 REPRESENTATIVE OGAN said, "That is exactly the point of this bill." He emphasized that the boards would become regulatory rather than adjudicatory. He quoted Winston Churchill as stating "when you have a lack of separation of powers between the judiciary and executive, you have a tyranny." While he was not implying that the boards are tyrannical, he did liken the present situation to "the fox watching the henhouse." Number 2152 CHAIRMAN KOTT expressed that the bill will be held over at which time the committee will take up public testimony again.
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