Legislature(2003 - 2004)
03/18/2004 02:15 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
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SB 203 - ADMINISTRATIVE HEARINGS/OFFICE Number 0464 CHAIR McGUIRE announced that the next order of business would be CS FOR SENATE BILL NO. 203(FIN) am, "An Act relating to administrative hearings, to hearing officers, and to administrative law judges; establishing the office of administrative hearings and relating to that office; and providing for an effective date." [Members' packets include a proposed House committee substitute (HCS) for SB 203, Version 23-LS0903\J, Cook, 3/17/04.] Number 0553 DAVID A. INGRAM relayed that he is a former hearing officer for the state, specifically the Commercial Fisheries Entry Commission (CFEC), and has served for many years as the chair of the administrative law section for the Alaska Bar Association. He offered the following: I have an abiding interest in the improvement of administrative law in this state, and I speak from a varied background; I've also taught administrative law at the university for over the last 20 years. ... I am such a fan of this bill. I think ... central panels is just ... an idea who's time has definitely come; in fact, I think it's way overdue. ... A majority of the states have some sort of central panel ... - 29 states, something like that. ... I think this is a major step forward in the improvement of administrative law in the state. ... I think a central panel is essential for basically three main reasons. The appearance of fairness is so much improved if you have a central panel. ... I assure you, to the people out there who have been denied benefits, been denied [a] commercial fishing entry permit, or have [an] adverse action brought against them by some agency trying to take away their livelihood, it's very important. ... So the basic appearance ... [of fairness] is essential. ... Can you imagine how the public would feel if the general jurisdiction judges worked for the Department of Law and were employed and under the supervision and control of the Department of Law so [that] you've got their cohorts coming and arguing cases in front of them. It's the same kind of thing you've got in the agencies. Number 0692 MR. INGRAM continued: Another problem with the current system is that "ALJ's" - administrative law judges - and hearing officers are just human, and they work with these people. If you are employed by and under the supervision and control of the agencies, they become family; you're celebrating one another's birthdays, you're going to parties together, and it's just not good. ... No matter how much you fight it, your relationships with those people are bound to affect your decisions. And this is sort of where the rubber meets the road - at the agency; ... this is the hearing where facts are going to be found, and from that point on, sure, you can appeal it to the courts, but you're talking about legal error once you get on appeal. Your one shot at that fact finding is down there at the agency level, and it should be as fair and unbiased and unprejudiced and untainted by relationships as possible. Finally, ALJs and hearing officers should be removed from any threats of retribution, whether explicit or implicit. And as long as they are under the control and supervision of the agencies, I assure [you that] they are loath to expose misdeeds, corrupt practices, and the like that are going on in the agency, because they fear bad performance reports, denial of pay increases, demotions, [and other things]; you hear hearing officers and ALJs at various levels talk about some ... picayune things ... [like] parking spaces and ... bathroom privileges and what office you get and the like, but ... what it really comes down to is pay, and there's always that threat as long as they're under the thumb of the agencies. So, ... I've been working with ... Senator Therriault and Dave Stancliff and Andy Hemenway and the Senate Judiciary [Standing] Committee, and some earlier recommendations I had have already been incorporated into the [House] committee substitute you've got before you. There's one other, though, [that] I'd really like you to consider, and that is to strengthen the language in Section 1 of the bill regarding the purpose of the Act and the intent to include respect for an individual's privacy and to prohibit actions that threaten, intimidate, or harass a member of the public. Number 0842 MR. INGRAM concluded: And as a graphic example as to why something like this is necessary, and I even gave you some language there as to how it could be done, I've submitted four pages from a decision I rendered on January 30 of this year that discuss an incident where an agency hearing officer left a message on an individual's telephone answering machine which I found to violate that person's right of privacy and, even if it didn't constitute a threat, certainly constituted intimidation and harassment. And I would encourage you to strengthen up the language and send a clear message that this kind of conduct isn't going to be tolerated. ... That's all I have, and I thank you very much for this opportunity to appear; [I'd] be glad to answer any questions. CHAIR McGUIRE said that although ideas similar to what is being proposed via SB 203 were proffered during her time on the Joint Committee on Administrative Regulation Review, she is glad to see that now those ideas are finally gaining support. She thanked Mr. Ingram for his past work and his current efforts. REPRESENTATIVE GRUENBERG asked Mr. Ingram whether he sees any other problems with the bill. MR. INGRAM said he believes that all ALJs and hearing officers for every agency ought to be swept into a central panel at some point, although what the bill currently proposes is a good first step. He offered his understanding that the agencies currently listed in the bill are those that are willing to go along with this kind of change and not fight it. REPRESENTATIVE GRUENBERG noted that this idea is not new; prior legislators have offered similar legislation in the past. CHAIR McGUIRE concurred. Number 1008 REPRESENTATIVE ANDERSON indicated agreement with the concept embodied in bill. He noted, however, that workers' compensation is not included. MR. INGRAM posited that others could speak to that issue. REPRESENTATIVE ANDERSON mentioned the issue of exempt employees. MR. INGRAM noted that as a hearing officer for the CFEC, he was an exempt employee, and he was always kind of disturbed that he and his fellow hearing officers didn't have some sort of union protection as did other employees of the Alaska Department of Fish & Game. He said he would like to see some sort of protection for hearing officers and ALJs. REPRESENTATIVE GARA noted that some areas of regulation require a certain amount of expertise on the part of the ALJs and hearing officers that hold hearings regarding those areas of regulation, such as those pertaining to the Regulatory Commission of Alaska (RCA) and to workers' compensation. He asked whether RCA and workers' compensation and oil tax ALJs are included in the bill and would therefore function under a central panel. MR. INGRAM offered his understanding that the aforementioned are not included in the bill, and that it basically just includes agencies under the purview of the Department of Administration (DOA) and the Department of Revenue (DOR). REPRESENTATIVE GARA said he supports the concept of the bill, but added that he believes that in certain areas of regulation, the ALJs and hearing officers need a certain amount of specialized expertise. MR. INGRAM relayed his understanding that in states that have a central panel, ALJs and hearing officers from the agencies requiring a certain amount of expertise are swept into the panel and are then the ones to hear those types of cases without being under the control of the associated agency. He mentioned that the goal of having a central panel is to get the ALJs and hearing officers with the expertise away from the agencies. Number 1220 REPRESENTATIVE GARA asked whether ALJs are required to have a particular legal background. MR. INGRAM said yes, ALJ's must be members of the [Alaska] Bar and have two years of experience. REPRESENTATIVE GARA asked Mr. Ingram whether he felt that two years of experience is enough. MR. INGRAM opined that more is better, but remarked that whenever there is a job opening for an ALJ, there are plenty of candidates with plenty of experience. He mentioned that the agency he'd worked for had a rule that a person also had to have either two years of judging experience or two years of representing people in trials or before administrative agencies. In response to a question, he offered his understanding that the bill only requires two years' membership in the Alaska Bar Association. REPRESENTATIVE GARA said that two years of experience could mean completely different things: two years in a law library is not the same as two years in court. MR. INGRAM acknowledged that that requirement could be strengthened, and suggested that the two years consist of either judging experience or representing individuals before courts or administrative agencies. REPRESENTATIVE GARA pointed out, however, that when lawyers work for a law firm, they are considered to be representing someone in court though they may never have to show up in court. He asked how the latter part of Mr. Ingram's suggestion would be defined. MR. INGRAM posited that the question of whether the experience is adequate would be determined by the chief ALJ, who will be doing the hiring. REPRESENTATIVE GARA suggested that perhaps it would be more practical to require five years of experience, since many attorneys are still "pretty fresh" with only two years of bar membership. MR. INGRAM opined that five years of experience would be better, adding, "The more experience the better." He surmised that making more experience a requirement wouldn't seriously limit the number of applicants. Number 1401 REPRESENTATIVE OGG asked how the bill has changed from its original form. MR. INGRAM indicated that others could speak to that issue. REPRESENTATIVE OGG asked which agencies would not be participating. CHAIR McGUIRE suggested that that issue could be better addressed by the sponsor's representative. REPRESENTATIVE OGG asked what were the oldest unresolved cases in the CFEC's system. MR. INGRAM said that he knew of "open" cases that were initially filed in 1975 and 1977, and that there are between 50 and 100 open cases that have had a hearing officer decision since 1982- 1983 but are still unresolved. Part of the problem is that an applicant receives the benefit of being able to fish until his/her case is resolved, so from the applicant's point of view, if it is a bad case, just keeping it alive will result in being allowed to fish. REPRESENTATIVE GARA opined that leaving ALJs exempt, which lets the governor terminate them if he/she is dissatisfied with them, negates the bill's attempt at taking them out from under the pressure put upon them by the agencies. He asked Mr. Ingram whether he thought it would be a good idea to make ALJs nonexempt. MR. INGRAM said he did think that would be a good idea, and further suggested that it might also be a good idea to require that an ALJ or hearing officer can only be removed for cause, similar to the requirement for commissioners appointed to "quasi-judicial" agencies. Number 1706 EDWARD H. HEIN said that he is the chief appeals officer for the National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), U.S. Department of Commerce. He also relayed that he is a member of the Alaska Bar Association, an officer with the Alaska Association of Administrative Law Judges, a member of the National Association of Administrative Law Judges (NAALJ), and was a drafting attorney with the Legislative Affairs Agency during most of the 1980s. He went on to say: I'm just here to support the bill generally and to answer any questions if you have any. My office is ... the federal counterpart to ... [the] CFEC; we do cases involving the denial of fishing licenses and privileges. ... I've been involved with this issue and with both this bill and the previous bill for [the] past four years. I think this bill is a much-improved version of what was offered a few years ago. I support the bill. I'm not here in a representative capacity, I'm just here to speak on my own although the [NAALJ] ... generally supports centralized hearing offices. I think this is a bill that is a good- government bill. I think it will be good for Alaska; it places Alaska in the majority of states that have centralized panels. ... [There's] basically just four or five issues: ... independence of the hearing officers, professionalism of the hearing officers, efficiency, and public confidence. ... I work within an agency ... but my office is a separate office within the agency; I'm in a separate building, ... which ... reinforces the idea that we're independent. Our record is that we've reversed the agency [in] about an average of 25 percent of the cases, ... but I think we're the exception, and I can't speak for a lot of Alaska agencies. ... I can tell you that there are certainly other federal agencies that have significant problems with regard to their independence. MR. HEIN added: I use as one example the Social Security Administration. ... They've had a number of problems over the years including [the fact that] the ... agency set up a panel of lawyers to oversee the decisions that the administrative law judges were putting out, and they only review cases where the [ALJ] has found in favor of the claimant. And it has been a major source of dispute and contention within the agency .... And there are many other agencies in other states that have either formally or informally imposed criteria when it comes time for the hearing officers' review [of] their performance: they look at ... how many times that they ruled against their own agency. Those are the kind of things that are awful abuses ... of the independence, and something which the central panel ... will go a long way toward avoiding if not correcting. ... Number 1905 The professionalism: I think the fact that you would have a centralized office and a new code of ethics specifically for the hearing officers that the chief ALJ would produce and which would be applicable even under this bill to hearing officers outside the central panel, I think would be a good move toward professionalization of the statewide hearing officer core. [There are] also opportunities for cost effectiveness in centralized training for the hearing officers, and of course the qualifications would be more standardized. And then efficiency: there's always this argument between the expertise that a particular hearing officer [or] a set of hearing officers has within an agency versus giving a hearing officer a variety of cases. As I understand it in this bill, it's set up ... so that it could be the case that the hearing officers who will end up being ALJs under this centralized panel are already doing the work that they would be doing in the centralized panel to a great degree [though not entirely] .... And so essentially you're taking whatever expertise there might be and not eliminating it but putting it into the central [panel]. And to the extent that other expertise is needed, the [panel] itself will have an opportunity under this bill, I believe, to provide expertise as witnesses or as part of the case. Number 1986 And then public confidence I think is a matter of perception as much as reality. And ... I'm told ... that many people come into agencies with ..., if not the expectation, at least the suspicion that a hearing officer who works for the agency is already biased in favor of the agency. And many attorneys that I've talked to in Alaska have said that ... they go through the hearing through the agency because they're required to exhaust their administrative remedies, but they feel that the real hearing comes when they get to court. MR. HEIN continued: I think if you have a centralized panel and you have more confidence (indisc. - paper shuffling) and establishes a record of independence (indisc. - paper shuffling) I think you have less of that attitude going in and in fact may have a reduced number of cases going to court. I think a lot of people, depending on the case of course, ... even if they lose their appeal [or] lose their administrative claim, if they feel that they've had a fair hearing and that ... their evidence and their case has been adequately considered, I think it lessens the likelihood that they're going to want to take it to court and proceed further. I can't give you any guarantees about that, but that's my perception. So, with all that said, I have no opinion about which agencies and programs should be in or out of the jurisdiction of the central panel - ... those are really political decisions - but it's a good bill. And [the] one other thing I would say is that in February, ... the Alaska Association of Administrative Law Judges ... had a public panel discussion on this bill, and about the issues around it, with four chief ALJS from other states, and the consensus ... was this was as good a bill as they've seen and they all supported it. So with that, if you have any questions, I'll try to answer them. CHAIR McGUIRE asked Mr. Hein what kind of protections he has at the federal level that allow him to retain his independence and rule without fear of reprisal. MR. HEIN said that he has the same protections that all other federal employees have, and noted that there are avenues by which federal employees can pursue employment grievances. Without such protections, however, an employee really is at the mercy of whoever happens to be his/her supervisor, he observed. He posited that the protections offered by the bill will go quite a way towards improving the situation for state ALJs and hearing officers, and that there are probably any number of ways that even those protections could be strengthened. He opined that there is a legitimate need for strong protections for hearing officers and ALJs because there are a lot of subtle pressures that can be brought to bear on them, particularly when they are working within an agency; just having a centralized panel will help that situation. Number 2177 REPRESENTATIVE GARA asked Mr. Hein what his thoughts are on requiring at least five years of experience or, if less than five years, requiring that an applicant has "done" at least two trials or administrative law hearings. MR. HEIN replied: I think you have to have a balance in that ... you want to have it open to all qualified people, and you don't want to arbitrarily say you have to have ten years' experience or five years' experience in these particular things. ... But on the other hand I would agree that someone fresh out of law school might not be the best type of person to hire. It depends. I think that on the whole, having practical experience in court or with administrative agencies is a real plus. On the other hand ..., the role of a hearing officer is different than the role of an advocate, and I think that there are a lot of lawyers who make great advocates but would not make good hearing officers because they have a different temperament. So ... I think it's important that you hire someone who's able to make a decision and who's able to write well and ... is sensitive to the public, not ... only getting due process and a fair hearing in fact, but also having the appearance of doing so, both to the general public and to the people who come before you. As I say, ... even if a person loses and you have to deny their claim, I think you at least want to make sure that they know that they've gotten a fair hearing and that you've honestly considered all the evidence and that you've given them their day in court. So not everybody is suited to do that sort of work, and I think you're going to attract people who want to play that role rather than an advocate. Number 2271 MR. HEIN concluded: So I don't think you necessarily have to have a lot of advocacy in order to be a good hearing officer; I think you have to have those sensitivities. So in terms of setting up requirements, I think there should be a basic threshold, and I think this bill does that. I think it's very important to have legal training and, if necessary, to be a licensed attorney. ... I think this [bill] sets a nice balance in that with the two years' [experience] and then for the chief [ALJ] five years. But on the other hand, the chief ALJ is going to chose from those who apply, ... and the market may fluctuate ... [and so] it depends on how you pay these people and what kind of reputation the panel develops as to how attractive it will be to people. REPRESENTATIVE GARA indicated that he would be comfortable requiring five years' experience, though would not be as comfortable requiring only two years' experience [if] an applicant has never "done" either a trial or an administrative hearing. He opined that an applicant should at least be familiar with the process of introducing evidence. He asked Mr. Hein whether he has any concerns regarding that issue. MR. HEIN indicated that it would be a good idea for a person with only two years' experience to have at least some trial experience or administrative hearing experience. He noted, however, that extensive training is available for people who hold positions similar to his. TAPE 04-39, SIDE B Number 2380 MR. HEIN indicated that such training is available through federal programs and national organizations. He relayed his understanding that the majority of hearing officers across the country are not lawyers, and this is one of the reasons that training is available. However, he said he does think that lawyers have more sensitivity and understanding of due process and other [related] issues, but would not say that it's impossible to be a good hearing officer without being a lawyer. He concluded by reminding members that in the end, it will be up to the chief ALJ to pick from those who apply. CHAIR McGUIRE ascertained that a representative from the Child Support Enforcement Division (CSED) was available to answer questions should the committee have any for that division. Number 2307 DAVID STANCLIFF, Staff to Senator Gene Therriault, Joint Committee on Administrative Regulation Review, Alaska State Legislature, spoke on behalf of Senator Therriault, Chair of the Joint Committee on Administrative Regulation Review, regarding SB 203, which was sponsored by the Senate Rules Standing Committee by request of the Joint Committee on Administrative Regulation Review. He said: Basically, we set out to build the best model we could build, to do the least disruption to the existing system, as this transition away from captive judges in agencies becomes a centralized, highly-trained, highly-motivated, report-to-the-public, funded- separately group. To do that, we needed to be sensitive to the fact that the ALJs that would be stationed there needed to have the expertise that was going to be coming to them. And so we kind of matched the hearing officers with the expertise, and then we looked at the areas that ... require highly trained technical expertise, such as Representative Gara has mentioned, and we decided to exclude those: workers' [compensation], RCA, rate hearings, those types of things. We also looked at some of the boards and commissions that the legislature has seen fit to empower as adjudicatory bodies; some of these commissions are specifically set up and designed in boards to deliberate and to provide adjudication, so they weren't a neat fit. What you have left, from a list of about a little over 50, is now a list pared down by about 25 percent that matches what the office will be able to do with the expertise that will be coming into the office, with the resources that will be available for the office. And other states' experiences have been, once you show that this works, and once the model works and the agencies start getting comfortable with it - we gave the agencies options to use the hearing officers, as they see fit, out of the model - this all becomes a very orderly, meaningful transition. That's how we got to the list that we got to. Number 2189 CHAIR McGUIRE surmised, then, that future legislators might promote inclusion of other agencies. REPRESENTATIVE GRUENBERG relayed that according to discussions he'd had with Annette Kreitzer, Chief of Staff, Office of the Lieutenant Governor, she'd been anticipating that the procedures pertaining to notary publics would be included in SB 203. He asked whether such was included. Number 2148 ANDREW HEMENWAY, Hearing Officer: Procurement & Longevity Bonus, Hearings and Appeals, Office of the Commissioner, Department of Administration (DOA), said, "What we did is try to create a list that was the universe of hearings and then we sorted through that list, and I don't recall seeing something like that on any list ...." REPRESENTATIVE GRUENBERG expressed an interest in adding [notary publics] to the list. REPRESENTATIVE HOLM indicated that he is comfortable with the legislation, though he is concerned with whether there will be appropriate oversight [of the central panel]. REPRESENTATIVE ANDERSON relayed that he supports the legislation. REPRESENTATIVE GARA indicated that he'd like to address "the nonexempt issue" via a conceptual amendment. MR. STANCLIFF said: That has been the focus of much debate and much deliberation and much compromise. The compromise that we reached was that the protections that are in this bill now are not the full protections - which we've been told we shouldn't do, from models in other states. However, they are the protections that are modeled after [the Division of Elections] employees, where they can't simply be removed, that there's a hearing process that they have; they have a process to protect them from indiscriminate behavior from a supervisor, but you don't rise to the level of a full "PX" (ph) position. So that was a compromise that the administration was willing to make, that the people within, that are working now as hearing officers, are willing to accept, that come into the panel. And that's how we got where we're at. Andy has specifics on that "custom PX" that we've created here. Number 2039 MR. HEMENWAY added: It's on page 6 of the draft [HCS] at the top. Lines 6-8 [state] that even though they are partially exempt, notwithstanding that most partially exempt don't have to go through the personnel rules to be disciplined, these positions are subject to the personnel rules adopted under the personnel Act. And [in] those specific provisions - [AS 39.25.150(7) and (15)-(16)] - [paragraph] (7) is the one that deals with the probationary period, so you get a one-year probationary period during which time your performance is assessed and [if] it's not satisfactory, you could be dismissed; after that, [paragraphs] (15) and (16) kick in - those are the disciplinary and dismissal provisions of the personnel rules - and they apply to these hearing officers. And one of the rules ... states that you can only be dismissed for just cause .... REPRESENTATIVE GARA surmised, then, that [dismissal for] just cause applies after the one-year probationary period. MR. HEMENWAY concurred, adding that they'd wanted to provide flexibility on the "hiring side" while providing protections on the "discharge side." REPRESENTATIVE GARA turned attention to proposed AS 44.64.030(a)(19), which starts at the bottom of page 4 and ends at the top of page 5. He asked whether the statutes proposed in this language pertain to rate-setting issues. MR. STANCLIFF indicated that they do not, and noted that the definition section of the bill specifies that hearings conducted by the central panel won't include rate-setting hearings. REPRESENTATIVE GARA commended Mr. Stancliff for his work on this difficult issue. "The bill sounds good, strong, needed, and done right," he added. REPRESENTATIVE GRUENBERG indicated that he intended to offer Mr. Ingram's suggested language as an amendment. MR. STANCLIFF said he is comfortable with having that language added to the intent section of the bill. Number 1875 CHAIR McGUIRE inquired about the possibility of adding, to the list on pages 4-5, statutes pertaining to the legislative ethics Act. She suggested that it might be best if hearings pertaining to such issues were conducted by the central panel. MR. STANCLIFF indicated that that issue had not heretofore been discussed, offered to give it consideration, but warned that some legislators might have discomfort with allowing employees of the executive branch to adjudicate issues pertaining to the legislative branch. CHAIR McGUIRE remarked that she likes the model being proposed by SB 203 and is simply thinking in terms of perhaps in the future applying it to other areas, such as legislative ethics hearings, as well. REPRESENTATIVE GARA indicated that he would have concerns about having hearings pertaining to legislative ethics conducted by executive branch employees; it would be too easy for partisan politics to hold sway in such a situation. Although the current system regarding legislative ethics may not be perfect and might perhaps be looked at in the future with the goal of making it better, at least right now both parties are represented in equal number, he added. REPRESENTATIVE GRUENBERG, noting that the chief ALJ is to be appointed by the governor and confirmed by the legislature, asked why the bill does not propose to use the method currently used by the Alaska Judicial Council (AJC) regarding the appointment of judges, wherein the AJC nominates persons and then the governor chooses from those nominees. MR. STANCLIFF indicated that the bill was based on models used in other states, with the premise being that because the chief ALJ would perform duties as part of the executive branch, it would be more appropriate for the appointment process to start with the governor. Number 1551 REPRESENTATIVE GRUENBERG clarified that he is more concerned about the issue of subjecting the chief ALJ to confirmation by the legislature, since that process can be very political in nature. MR. STANCLIFF relayed that although the attorney general recommended not using the legislative confirmation process, an amendment adding that process was offered on the Senate floor by Senator Guess and was adopted unanimously. REPRESENTATIVE GRUENBERG said he still has concerns about that issue. He then turned attention to page 2, line 25, which stipulates that the governor can remove the chief ALJ from office only for just cause and after a hearing conducted by the attorney general. He said he has concern about the latter aspect of that stipulation because such a hearing could end up being political in nature. He asked why such a hearing couldn't be conducted by the Commission on Judicial Conduct (CJC). MR. STANCLIFF offered that the intent was that any given administration should have some influence on the process, and that the level of that influence is up to the legislature to decide. The object, he noted, is to get the best qualified person for the position, someone who will operate independently and bring together a highly trained, highly motivated, efficient and fair panel. In response to a question, he relayed that it is only the chief ALJ that is subject to legislative confirmation and a hearing conducted by the attorney general. CHAIR McGUIRE mentioned that it was time to consider amendments to the bill. Number 1318 REPRESENTATIVE ANDERSON moved to adopt the proposed House committee substitute (HCS) for SB 203, Version 23-LS0903\J, Cook, 3/17/04, as the work draft. There being no objection, Version J was before the committee. Number 1304 REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual Amendment 1, "to add to the list, disciplinary proceedings involving notaries public." There being no objection, Conceptual Amendment 1 was adopted. Number 1291 REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2, to replace the language in paragraph (2) of Section 1 with Mr. Ingram's suggested language, which reads [original punctuation provided]: (2) ensure respect for the privacy and dignity of the individuals whose cases are being adjudicated [;] and protect them from threats, intimidation, and harassment; CHAIR McGUIRE asked whether there were any objections to Amendment 2. There being none, Amendment 2 was adopted. REPRESENTATIVE GRUENBERG turned attention back to page 2, lines [22 and 25], which pertain to the appointment and removal of the chief ALJ, and again mentioned the possibility of having the CJC involved in the process. MR. HEMENWAY relayed that he'd spoken with the executive director of the CJC, Marla Greenstein, about possibly having the CJC become involved in the process, but Ms. Greenstein had expressed concerns about constitutional issues. REPRESENTATIVE GRUENBERG said he is still concerned about the appointment and removal processes as currently proposed. MR. STANCLIFF offered that including legislative confirmation in the appointment process does add some balance to that process. He relayed that the sponsor is still open to suggestions for improving the bill. REPRESENTATIVE GARA opined that involving the CJC in the appointment process would create a constitutional problem. He then offered his belief that including the attorney general in the removal process is a bad idea and could become something of a farce, and suggested that simply allowing the governor to remove the chief ALJ for good cause is sufficient. Number 1055 REPRESENTATIVE GARA made a motion to adopt Amendment 3, on page 2, line 25, to remove, "and after a hearing conducted by the attorney general". Number 1046 CHAIR McGUIRE objected for the purpose of discussion. REPRESENTATIVE GRUENBERG said he supports Amendment 3. REPRESENTATIVE SAMUELS said he agrees that having the attorney general involved in the removal process could create difficulties. Number 0973 CHAIR McGUIRE, after removing her objection, asked whether there were any further objections. There being none, Amendment 3 was adopted. REPRESENTATIVE GRUENBERG asked whether there is anything in the bill that would prohibit looking at the percentage of rulings against an agency as part of an ALJ's performance evaluation. MR. STANCLIFF replied: There's some excellent models, through both Maryland and Colorado, that get to that very point. They want to survey for public acceptance and public approval; they do not want to start rating them according to how they rule this way or the other. And I can get a copy of that for Representative Gruenberg. We're going to provide all those materials. And I might add for the committee's comfort here that both Ed Felter (ph), who is ... [an] internationally respected central panel expert, and John Hardwood (ph) will have availed themselves to work setting up the new panel with the new chief ALJ, and these type of resources and these cautions that you raise will be a part of what we want to avoid. We've stayed away from the micromanaging because there's no end to it. REPRESENTATIVE GRUENBERG asked whether the bill contains a provision to make all ALJs and hearing officers, not just those on the central panel, nonexempt and, if not, should there be such a provision in the bill. MR. STANCLIFF replied: The central panel protections are in place; we don't extend the rules and the central panel protections outside the central panel at this time. The hearing officers that are operating and ... will continue to operate in their jobs outside the central panel, in most cases, are full "PX" employees and will remain that way until they come into the jurisdiction and become ALJs. And that's the way [the bill] is written right now. REPRESENTATIVE GRUENBERG asked about the possibility of including a provision that requires the other agencies that use ALJs and hearing officers to make a report to the legislature - perhaps in six months, for example, or by the end of the next legislative session - regarding whether they believe their hearing officers and ALJs ought to be nonexempt. He opined that the policy should be to free hearing officers and ALJs from political considerations; the burden should be on an agency to [prove] that someone should be politically appointed. MR. STANCLIFF replied: That has been thought of and taken care of under the duties and responsibilities of the chief [ALJ]; they are to gather ... exactly that type of information from not only their own house but also ... [from other agencies] and to bring to you, the legislative policy makers, their recommendations, and I'm sure this is going to be one of them. ... REPRESENTATIVE GRUENBERG asked about centralized training and qualifications for ALJs and hearing officers that are not on the central panel. MR. STANCLIFF said that the bill requires [the central panel] to provide cross training, resource materials, and to work with all ALJs and hearing officers, whether part of the central panel or not, to help them "come up to speed." Number 0660 REPRESENTATIVE ANDERSON moved to report the proposed House committee substitute (HCS) for SB 203, Version 23-LS0903\J, Cook, 3/17/04, as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, HCS CSSB 203(JUD) was reported from the House Judiciary Standing Committee.
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