Thursday, September 13, 2012

Nelson, Dorman Team Up, Study Administrative Law Judges

OKLAHOMA CITY – Average Oklahomans come into contact with administrative laws frequently, former administrative law judge Gary Payne told lawmakers today.

Administrative law is created by state agencies when lawmakers enact legislation that authorize agencies to create rules. Administrative law judges interpret these laws and try cases affecting everything from professional licenses to corporate regulations when a state agency takes action against those they license or regulate.

In Oklahoma, administrative law judges are often imbedded in or contracted with by the state agencies, creating an inherent conflict of interest, according to state Reps. Jason Nelson and Joe Dorman, who jointly requested the study.

“An administrative law judge can certainly act impartially even while imbedded in a state agency,” said Dorman, D-Rush Springs. “But how does a citizen feel when they are before the ‘DHS judge’ in appealing a DHS decision? How does a business feel when they are arguing with a licensing or regulatory authority and are dealing with the agency’s administrative law judge? I think we need to find a way to address this inherent conflict of interest.”

Judge Gary Payne speaking at a legislative study on
Administrative Law Judges at the Capitol today 
Nelson said imbedded administrative law judges create circumstances where agencies serve as the “prosecutor, judge and jury.”

“I have personally witnessed several blatant instances of a bias in favor of the agencies where the citizens paid the price,” said Nelson, R-Oklahoma City. “Citizens deserve and have a constitutional right to an impartial process before an impartial administrative law judge when their ability to make a living is on the line.”

“This bias benefits many state agencies because they assess fines and penalties that are used help fund the agency.”

Lydia Lee, an administrative law judge for the Oklahoma Merit Commission and the Oklahoma Department of Labor, said agencies cannot all be treated in the same manner. She also said that she is aware of cases in which citizens were not properly served.

Lee and Kay Floyd, another administrative law judge, said the Oklahoma Merit Commission is an excellent example of an appropriate process.

Five sets of procedural rules govern administrative law judges, Floyd said. She also noted that licensed administrative law judges are observed by colleagues, who can turn in complaints to them to the Oklahoma Bar Association or Council of Judicial Complaints if actions are inappropriate.

Hearing officers are not licensed and have less oversight of their actions, she said.

Tony Mastin, executive director of the Oklahoma Tax Commission, said he does not believe moving around the location of administrative law judges and hearing officers will improve the perception of impartiality or increase impartiality.

Nelson and Dorman co-authored a bill to address administrative law judges in the 2012 legislative session that failed to make it through the process. They plan to file a new bill for the 2013 legislative session, Dorman said.

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