Annual report / Arizona Office of Administrative Hearings

              21
The Office of Administrative
Hearings
The Seventh Annual Report
to
Governor Jane Dee Hull
Senator Randall Gnant, President of the Senate
Representative Jim Weiers, Speaker of the House
Pursuant to A.R.S. §41-1092.01(C)(5)
and
A.R.S. §41-1092.01(C)(9)
Cliff J. Vanell, Director
November 2002
20
Contents
I. Introduction and Overview………………………………………………………........... ...1
II. Continued Development of the Office....................................................………........2
1. Implementation of the Cost Allocation Methodology......................................2
2. Newsletter ........................................................................................................... 2
3. Website ................................................................................................................ 2
4. Portal ................................................................................................................... 3
5. Development of Administrative Law Judge Cadres.........................................3
6. National Central Panel Directors Conference .................................................... 3
III. Summary of Agency use of OAH Services................................................................... 4
1. Case Management ............................................................................................. 4
a. Breakdown of Cases Filed by Agency (FY 2002) ........................................... 4
b. Number /Disposition of Cases Filed versus Cases Concluded ........................ 5
c. Timeline of Case Management ........................................................................ 6
d. Incidence of Continuance ................................................................................ 7
2. Evaluation............................................................................................................ 9
a. Results of Public Evaluation ............................................................................. 9
b. Incidence of Rehearing/Appeal ........................................................................11
IV. Acceptance of ALJ Decisions by Agency................................................................. 12
1. Agency Action ................................................................................................... 12
2. Agency Inaction ................................................................................................ 15
V. Motions for Change of Administrative Law Judge Granted Pursuant to
A.R.S. §41-1092.07 ..................................................................................................... 16
VI. Violations of A.R.S. §41-1009 .................................................................................. 16
VII. Recommendations for Changes in the Administrative Procedures Act .............. 16
1. Establish uniform standards for appeal rights notice ................................... 16
2. Establish uniform basis for rehearing............................................................. 16
3. Expand the right to settlement conferences to include “contested cases”. 16
4. Conform Rehearing and Appeal Rules ............................................................ 16
5. Recoupment of Costs for Administrative Hearings........................................ 17
VIII. Recommendation for Changes or Improvements in Agency Practice with
Respect to the Administrative Procedures Act................................................... 17
Statutory Guidance in Definition of “Physical Injury” under A.R.S. §8-201 ...... 17
Appendices ....................................................................................................................... 19
A. Cost Allocation Methodology
B. Newsletters
C. Agenda National Central Panel Directors Conference
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I. Introduction and Overview
The Office of Administrative Hearings (OAH) was created pursuant to Laws 1995, Chapter 251,
adding Arizona Revised Statutes §41-1092 et seq., and commenced operation on January 1, 1996.
Administrative hearings previously provided by regulatory agencies (except those specifically ex-empted)
were transferred to the OAH for independent proceedings. There are two OAH locations,
Phoenix and Tucson, with 34 full-time positions, including the Director, the Chief Executive Assistant,
1 Case Management Supervisor, the Office Manager, 20 Administrative Law Judges (ALJ), and 10
support staff. In addition to conducting hearings in Phoenix and Tucson, the OAH travels nearly four
weeks per month on rotation to Flagstaff, Kingman, Lake Havasu City, Prescott, Show Low, Sierra
Vista, and Yuma. Our statutory mandate is to “ensure that the public receives fair and independent
administrative hearings.”
Responsibility:
The OAH understands its responsibility to create a system that is efficient and cost effective. The
statistics of the OAH in FY 2002 indicate agency acceptance of ALJ recommended orders without
modification was 92.13%. Agency acceptance of Findings of Fact and Conclusions of Law without
modification was 96.32%. Rehearings (0.72%) and appeals (1.88%) were rare. Evaluations by
participants continue to indicate that ALJs and the OAH were rated excellent or good in 93.37% to
96.9% of responses.
Integrity:
The OAH takes its statutory mandate to provide fair, impartial and independent hearings seriously.
Although part of the Executive branch, together with its client agencies, the OAH maintains a
conscious detachment from political issues and the missions of the other agencies. Procedures,
rulings, and case assignment are at all times kept free of outside pressures to ensure that all
parties can be assured that hearings are impartial and independent.
Commitment:
The OAH views commitment as a willingness to advance its mission. The OAH may on occasion
take a position that conflicts with the predisposition of a client agency. Although the OAH works to
accommodate legitimate needs of an agency, the OAH does so only in a way consistent with the
fairness, impartiality, independence and efficiency of its hearings. In that spirit, the OAH recom-mends
that A.R.S. §8-201 better define “physical injury” as it relates to abuse in hearings con-ducted
by the OAH pursuant to A.R.S. §8-811 due to the range of reasonable interpretations and
the resulting inconsistency in our adjudication. A detailed analysis of the problem may be found in
the “Recommendations” section of this report.
Efficiency:
Through careful case management, the OAH enjoys a minimal backlog. The completion rate for
cases in FY 2002 was 96.0%, despite a 9.7% increase in cases over FY 2002* and the loss of
one Administrative Law Judge due to budget constraints**. This illustrates the effectiveness of
cross-training of judges. Cross-training of judges continues to result in real benefits to taxpayers
and parties alike. First, ALJ time can be leveled out to avoid one ALJ assigned in a single area to
be underutilized while an ALJ assigned in another area cannot meet existing challenges. Sec-ondly,
personal and professional growth, collegiality and a larger focus encourages more creativity
and better problem-solving.
* as corrected for the new method of counting certain consolidated matters for statistical purposes that has been adopted for FY 2002 data.
** However, the completion rate declined from 99.9% in FY 2001.
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Cost Effectiveness:
The total cost of conducting hearings for the General Fund agencies has decreased since the
function was transferred to the OAH. The following amounts, which represented the amount
appropriated to the agencies for hearings for the second half of FY 1996, were transferred to the
OAH when it was created: Department of Administration: $8,750; Building and Fire Safety:
$35,600; Banking: $2,450; Education: $12,950; Department of Environmental Quality: $6,000;
Department of Health Services: $17,450; Insurance: $88,000; Liquor: $44,100; Racing: $4,250;
Real Estate: $43,550; Revenue: $47,800; Water Resources: $36,700. The annualized amounts of
these appropriations were: Department of Administration: $17,500; Building and Fire Safety:
$71,200; Banking: $2,450; Education: $25,900; Department of Environmental Quality: $12,000;
Department of Health Services: $34,900; Insurance: $176,000; Liquor: $88,200; Racing: $8,500;
Real Estate: $87,100; Revenue: $95,600; Water Resources: $73,400. By dividing these amounts
by the cases filed for these agencies in 1995, the average cost per case prior to the creation of
the OAH was $1,040.72. By 2002, despite a 57% increase in the number of cases for these
agencies, the interjection of an independent process and more timely hearings, and the increased
costs due to employee merit raises and overhead, the cost per case declined 63% to $384.98.
II. Continued Development of the Office
1. Implementation of Cost Allocation Methodology
As mandated by the Legislature, a new cost allocation method was adopted in FY 2001 to fairly
distribute costs to each 90-10 agency, board and commission (ISA agency) for services rendered
by the OAH.
Commencing FY 2002, OAH entered into Intergovernmental Service Agreements (ISA) with the ISA
agencies which involve the quarterly transfer of funds by each to the OAH ISA fund. As described
in Appendix A, OAH ensures that the revenues from the ISA agencies are tracked, as well as how
these revenues are allocated to the total expenditures of OAH. Attached as Exhibit 1 to Appendix
A is a typical ISA agreement that reflects the cost allocation plan, and OAH’s method for account-ing
to the ISA agencies and FY end reconciliation.
2. Newsletter
The OAH has completed publication of four editions of the OAH Newsletter on a quarterly basis
during FY 2002. The Newsletter reports various performance measures and discusses current
issues. The Newsletter includes a series of articles written by Administrative Law Judges that
include practice pointers. All articles appear on the OAH website, along with the OAH perfor-mance
measures. Copies of the four editions published in FY 2002 are included in Appendix B.
3. Website
The OAH website was redesigned and upgraded in FY 2002. The OAH website is designed with
the minimum of frills and organized to allow visitors to find information as quickly as possible. The
background of the OAH, including its mission statement, logo, management philosophy and views
of the hearing rooms give parties a sense of the “feel” of the OAH. The biographies of the Admin-istrative
Law Judges allow parties to put a name to a face and learn about a judge’s background.
Along with links to the Arizona Revised Statutes, Arizona Administrative Code and OAH’s proce-dural
rules, the OAH has included extensive cross referencing to allow non-lawyers to quickly pick
up practice pointers and be able to put the law together with a minimum of searching. For ex-ample,
if a person goes to OAH’s procedural rules, any rule which references another rule will
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have a link to it, as well as any statute in the Uniform Administrative Hearings Procedures that
deals with the same issue. Likewise, any reference in articles dealing with practice pointers or
any response to a frequently asked question that refers to any rule or statute will have links. An
average of 2,226 requests were made weekly from the website in FY 2002 from 300 unique
domains. The two most visited webpages is the OAH Portal (described below) and articles written
by the Administrative Law Judges regarding practice pointers and procedure. All OAH informa-tional
brochures included with the Notices of Hearing mailed by the agencies, boards and commis-sions
now include a flyer describing the OAH website.
4. OAH Portal
The OAH Portal is an important asset to parties since it allows parties to directly access OAH’s
docket to view case settings, rulings, receipt of documents and other information. The Portal
allows the general public to view all non-confidential cases. Each agency is given a password to
view its otherwise non-accessible matters.
5. Development of Administrative Law Judge Cadres
A.R.S. §41-1092.01 makes explicit the requirement that the OAH provide technical training to
Administrative Law Judges. In addition, A.R.S. §41-1092.07 created a statutory right to file a
nonperemptory motion with the OAH Director to disqualify an administrative law judge for bias,
prejudice, personal interest or lack of technical expertise necessary for a particular hearing. In FY
2002, in addition to training, which included State Bar sponsored continuing legal education,
privately presented courses, as well as contracted presentations, the OAH provided 40 hours of
continuing education opportunities to each administrative law judge to ensure professional devel-opment.
6. National Central Panel Directors Conference
The annual National Conference of Central Panel Directors was held at the Hyatt Regency Hotel
in downtown Phoenix from December 5-8, 2001, hosted by the Arizona Office of Administrative
Hearings. Representatives attended from Alabama, Arizona, Chicago, Colorado, Florida, Geor-gia,
Iowa, Louisiana, Maryland, Maine, Massachusetts, Michigan, Minnesota, Missouri, New
Jersey, North Carolina, North Dakota, Oregon, South Carolina, Tennessee, Texas, Washington,
Washington DC, Wisconsin, and Wyoming. The agenda included refining approaches to case
management and technology, attracting and retaining administrative law judges, increasing public
accessibility to the administrative process, and procedural rules. Chief Justice Thomas Zlaket
addressed the gathering regarding judicial ethics and commitment to the fair, impartial and prompt
administration of justice.
In preparation for its hosting of the conference, the OAH created a “cyber conference” of resource
materials accessible through the OAH website for use by the national conference. The resource
materials included questionnaires completed by all states and cities with central panels that
compare each according to its development in technology, including the ability of the public to
retrieve information regarding cases on the web, statistical accountability, and independence.
4
III. Summary of Agency use of OAH Services
1. Case Management
a. Breakdown of Cases Filed by Agency (FY 2002):
7,080 cases were filed with the OAH in FY 2002. The distribution among the agencies and
boards are as follows (in ascending order by number of cases filed):
Arizona Board of Occupational Therapy Examiners 1
Arizona Works-Maximus-(DES) 1
State Schools for the Deaf and the Blind 1
Department of Agriculture 2
Board of Nursing Care Institution Administrators Examiners 3
Department of Education 3
Secretary of State 3
Department of Gaming 5
Maricopa County Housing Department 5
Board of Technical Registration 6
Office of the Attorney General 7
Board of Chiropractic Examiners 9
Board of Medical Examiners (Arizona Medical Board) 9
Department of Administration 9
Office of Alternative Fuel Recovery 10
Department of Public Safety - Concealed Weapons Permit Unit 11
Peace Officers Standards and Training 12
Board of Appraisal 13
Department of Public Safety - Student Transportation 13
State Land Department 14
Board of Behavioral Health Examiners 15
Department of Water Resources 18
Department of Racing 23
Board of Dental Examiners 26
Structural Pest Control Commission 26
State Board of Accountancy 27
State Board of Nursing 36
State Banking Department 52
State Board of Cosmetology 52
Liquor Licenses and Control 68
Department of Revenue 69
Department of Real Estate 90
Department of Environmental Quality 107
Department of Insurance 113
Department of Weights and Measures 132
Department of Building and Fire Safety 235
Department of Health Services 238
Department of Economic Security - CPS 240
Department of Administration-Capitol Police Parking 327
Registrar of Contractors 1645
Arizona Health Care Cost Containment System 3404
5
b. Number of Cases Filed versus Cases Concluded
In FY 2002, the conclusion rate, defined as cases concluded divided by new cases filed was
96%.
Comparison of Cases Filed v. Cases Concluded
6797
7080
6650
6700
6750
6800
6850
6900
6950
7000
7050
7100
7150
Cases
Cases Concluded
Cases Filed
The following diagram illustrates that, in most cases, matters proceed to hearing. Matters which
are vacated indicate that some portion of the OAH hearing calendar is taken up unnecessarily.
Statute calls for the setting of hearings within 60 days of a request for hearing by an agency in a
“contested case” and within 60 days of an appeal of an “appealable agency action”. Although an
argument could be made that such timelines inevitably result in unnecessary hearing settings,
case management at the OAH discourages cases being “on hold” or riding the calendar. Gener-ally
a matter is vacated from the first hearing setting as the result of settlement. Therefore, on the
whole, statutory time limits are beneficial to the larger process of regulatory action.
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Disposition of Concluded Cases FY 2002
Hearing
Conducted
59%
Vacated by ALJ
38%
Vacated by
Agency
3%
c. Timeline of Case Management:
A.R.S. §41-1092.05(A) and §41-1092.08(A) and (B) contemplate a rigorous timeline to expedite
hearings and final agency actions. “Appealable agency actions” (AAA: defined as actions taken
by an agency without a prior hearing) are required to be set for hearing within 60 days of a re-quest
by a party. “Contested cases” (CC: defined as proposed actions for which a hearing is
required) are required to be set within 60 days of an agency request. Administrative decisions
must be transmitted to the agencies within 20 days of the conclusion of the hearing. The directors
and boards are required to take final action within 30 days of receipt.
The following diagram illustrates the average timelines:
Average Days Between Selected Events - Appealable Agency
Actions v. Contested Cases
1.19
46.89
8.64
12.94
3.00
56.73
11.03
15.35
0.00
10.00
20.00
30.00
40.00
50.00
60.00
Request for
Hearing to
Scheduling
Scheduling to First
Hearing Date
Conclusion of
Hearing to ALJ
Decision
ALJ Decision to
Agency Action
AAA
CC
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d. Incidence of Continuance:
A single continuance adds an of average of 46.21 days to the length of a case. 55.37% of all
continuance requests were granted in FY 2002. The OAH has developed a well-deserved reputa-tion
for discouraging “convenience” continuances in favor of those based on “good cause”. This
is especially important because of the decrease in the number of ALJ’s due to budget constraints.
The frequency of continuance, defined as the number of continuances granted (675) over the total
number of cases first scheduled (7,049), expressed as a percent, was 9.57%. The ratio of first
settings (5,712) to continued settings on the calendar (607) was 1 to 0.11.
Comparison of Source of Continuance, FY 2002
8.19%
91.81%
Continuance upon motion
of agency
Continuance upon motion
of non-agency party
8
The following list indicates the number of continuances by agency. Indicated also are the contin-ued
settings in FY 2002, divided by those granted on motion of a non-agency party and those on
motion of the agency.
AGENCY Continued - Continued -
Motion by non- Motion by
agency party agency party
Arizona Health Care Cost Containment System 182 0
Attorney General 0 1
Board of Chiropractic Examiners 3 1
Board of Nursing 4 0
Department of Administration 1 2
Department of Administration-Capitol Police Parking 0 14
Department of Building and Fire Safety 18 0
Department of Economic Security - CPS 18 4
Department of Environmental Quality 9 3
Department of Gaming 2 0
Department of Health Services 28 13
Department of Insurance 14 1
Department of Public Safety - Concealed Weapons 2 1
Department of Public Safety - Student Transportation 2 0
Department of Racing 2 0
Department of Real Estate 5 2
Department of Revenue 13 1
Department of Water Resources 3 0
Department of Weights and Measures 4 0
Liquor Licenses and Control 9 1
Office of Alternative Fuel Recovery 9 0
Peace Officers Standards and Training 3 0
Registrar of Contractors 208 1
Secretary of State - Business Services Division 1 0
State Banking Department 3 1
State Board of Accountancy 1 0
State Board of Cosmetology 1 0
State Land Department 2 1
Structural Pest Control Commission 2 2
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2. Evaluation
a. Results of Public Evaluation:
Since November 1996, the OAH has administered an evaluation procedure. At the conclusion of every
hearing, evaluations are handed out to four major groups of respondents: Represented private party;
unrepresented private party; counsel for a private party; and counsel for the agency. The results are not
disclosed to the administrative law judge.
Those responding are asked to rate the following categories, on a scale of excellent, good, satisfactory,
poor:
1. Attentiveness of ALJ
2. Effectiveness in explaining the hearing process
3. ALJ’s use of clear and neutral language
4. Impartiality
5. Effectiveness in dealing with the issues of the case
6. Sufficient space
7. Freedom from distractions
8. Questions responded to promptly and completely
9. Treated courteously
The results indicate that satisfaction is high among all groups, with those responding rating the
OAH excellent to good in all categories. An analysis of the unrepresented parties for a sample
quarter indicates that even among this most vulnerable group, the OAH is seen to be functioning
extremely well.
All Responses FY 2002
0
500
1000
1500
2000
2500
3000
Question 1
Question 2
Question 3
Question 4
Question 5
Question 6
Question 7
Question 8
Question 9
Excellent
Good
Average
Poor
10
Unrepresented Responses FY 2002
0
200
400
600
800
1000
1200
Question 1
Question 2
Question 3
Question 4
Question 5
Question 6
Question 7
Question 8
Question 9
Excellent
Good
Average
Poor
The following diagram illustrates that 94.37% to 96.9% of participants evaluating the OAH process
responded that the OAH was excellent or good in all categories.
EVALUATION FY 2002
96.90% 96.82% 96.84% 94.77% 94.37% 95.30% 96.77% 95.05% 96.72%
2.04% 2.73% 3.19% 4.25% 4.05%
6.77% 5.23% 4.17% 3.00%
0.37% 0.45% 0.59% 1.87% 1.71% 0.83% 0.18% 0.77% 0.39%
0.00%
20.00%
40.00%
60.00%
80.00%
100.00%
120.00%
1 2 3 4 5 6 7 8 9
QUESTIONS RESPONSES IN %
EXCELLENT/GOOD
AVERAGE
POOR
11
b. Incidence of Rehearing/Appeal:
In FY 2002, the rehearing rate (defined as rehearings scheduled divided by cases heard) was
.72% The judicial appeal rate (defined as judicial appeals taken divided by cases heard) was
1.88%. As reflected in the following diagram, rehearings and judicial appeals in FY 2002 were
relatively rare. Both were concentrated at the Registrar of Contractors. Registrar cases are
primarily contests between two private litigants (homeowner/contractor; contractor/subcontractor).
Judicial Appeals and Rehearings FY 2002
13
42
1 1
2
1
2
1
2 2 2
1 1 1 1 1 1
5
16
1 1 1
2
1 1 1
0
5
10
15
20
25
30
35
40
45
AHCCCS
Registrar of Contractors
Department of Education
Department of Water Resources
Department of Administration
Board of Nursing
Department of Building and Fire Safety
State Land Department
Department of Economic Security - CPS
Liquor Licenses and Control
Department of Insurance
Department of Environmental Quality
Department of Racing
Department of Real Estate
Board of Accountancy
Board of Medical Examiners
Board of Podiatry Examiners
Department of Agriculture
Department of Health Services
Cases
Appeals
Rehearings
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IV. Acceptance of ALJ Decisions by Agencies
1. Agency Action
Agency acceptance of the OAH decisions is very high. 92.13% of all decisions acted upon by the
agencies (that is, excluding .84% of decisions certified as final due to agency inaction) are ac-cepted
without modification. Agency acceptance was 96.32% if viewed from the vantage point of
acceptance of Findings of Fact and Conclusions of Law, the core function of the administrative law
judge. The vast majority (70.29%) of modifications were in the Recommended Order (penalty
portion).
Agency Response FY 2002
Accepted without Modification
92.13%
Amended Order only
4.19%
Amended Finding/Conclusions
of Law only
1.77%
Rejected
1.92%
The following chart reports the number of cases in the various categories of agency response.
168 71 77 34
3698
0
500
1000
1500
2000
2500
3000
3500
4000
Accepted without
Modification
Amended Order only Amended
Findings/Conclusions
of Law only
Rejected Certified
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The following chart reports the breakdown by agency. This illustrates that modifications and
rejections are few relative to the decisions accepted.
Accept Modify Modify Reject
Penalty Fact/law
Arizona Board of Occupational Therapy Examiners 1 0 0 0
Arizona Health Care Cost Containment System 1,725 20 38 58
Arizona Medical Board 5 2 0 0
Arizona Works-Maximus-(DES) 1 0 0 0
Board of Behavioral Health Examiners 5 1 0 1
Board of Accountancy 2 1 0 0
Board of Appraisal 0 2 1 0
Board of Chiropractic Examiners 2 0 0 0
Board of Dental Examiners 2 1 1 0
Board of Nursing 19 1 1 1
Board of Nursing Care Institution Administrators Examiners 1 0 0 0
Board of Podiatry Examiners 1 0 0 0
Board of Technical Registration 1 0 0 0
Department of Administration 7 0 0 0
Department of Administration - Capitol Police Parking 208 0 0 0
Department of Agriculture 1 0 0 0
Department of Building and Fire Safety 177 1 0 0
Department of Economic Security - CPS 172 4 16 1
Department of Environmental Quality 13 0 1 0
Department of Gaming 2 0 0 0
Department of Health Services 111 2 1 3
Department of Insurance 64 0 1 2
Department of Public Safety - Concealed Weapons Permit Unit 7 0 0 0
Department of Public Safety - Student Transportation 9 0 0 0
Department of Racing 6 1 1 0
Department of Real Estate 29 4 0 0
Department of Water Resources 4 0 0 0
Department of Weights and Measures 0 0 0 0
Liquor Licenses and Control 33 2 0 1
Office of Alternative Fuel Recovery 15 0 0 0
Office of the Attorney General 1 0 0 0
Registrar of Contractors 1,054 124 10 7
State Banking Department 10 0 0 1
State Board of Cosmetology 3 0 0 0
State Land Department 4 0 0 0
Structural Pest Control Commission 3 2 0 2
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In FY 2002, OAH rendered a decision contrary in whole or in part to an agency’s original position in
22.26% of cases. Agency acceptance of contrary decisions was high (86.49%).
Recommendations Contrary to Original Agency Position FY 2002
ALJ Recommendation
Contrary in Whole or in Part
22.26%
ALJ Recommendation
Affirms
77.74%
The following two charts show a breakdown by agency of its response to contrary decisions.
Accepts Amends Amends Rejects
Order Findings/Law
AHCCCS 131 15 57 11
Alternative Fuel Recovery 2 0 0 0
Banking 3 0 1 0
Board of Accountancy 0 1 0 0
Board of Behavioral Health Examiners 0 0 1 1
Board of Cosmetology 1 0 0 0
Board of Dental Examiners 1 0 0 1
Board of Medical Examiners 0 0 0 1
Board of Nursing 1 0 0 0
Building and Fire Safety 16 0 0 0
Capitol Police Parking 151 0 0 0
Department of Economic Security - CPS 1 3 0 2
Department of Environmental Quality 2 0 0 0
Department of Health Services 2 1 2 1
Department of Insurance 9 0 1 0
Department of Public Safety - Concealed Weapons 2 0 0 0
Department of Racing 2 3 0 0
Department of Real Estate 5 0 0 0
Podiatry 0 0 0 1
Registrar of Contractors 21 1 0 5
15
Agency Response to Contrary Recommendations FY 2002
350
24
62
23
0
50
100
150
200
250
300
350
400
Agency Accepts Contrary
Recommendation 76.25%
Agency Amends Findings
Accepts Order 5.23%
Agency Rejects Contrary
Recommendation 5.97%
Agency Amends Order
Accepts Findings of
Fact/Law 5.01%
Cases
2. Agency Inaction With Subsequent OAH Certification of Finality
Beginning August 21, 1998, the OAH was required to certify its recommended order as the final
administrative decision if the OAH has not received the agency, board or commission’s action
accepting, modifying or rejecting the recommended decision within 30 days of transmission.
Special rules apply if the board or commission meets monthly or less frequently. See A.R.S. §41-
1092.08(D). In FY 2002, 34 recommended decisions were certified as final administrative deci-sions.
Arizona Health Care Cost Containment System 2
Board of Accountancy 1
Board of Behavioral Health Examiners 1
Board of Cosmetology 1
Department of Building and Fire Safety 12
Department of Economic Security - CPS 1
Department of Insurance 1
Department of Public Safety - Concealed Weapons 2
Department of Racing 1
Department of Water Resources 1
Office of Alternative Fuels 6
Office of the Attorney General 1
Registrar of Contractors 1
Structural Pest Control 3
16
V. Motions for Change of Administrative Law
Judge Granted Pursuant to A.R.S. §41-1092.07
Pursuant to A.R.S. §41-1092.01(C)(9) (b), the OAH reports that 12 motions to the OAH Director for
change of judge were filed pursuant to A.R.S. §41-1092.07(A) for bias or prejudice. 1 motion was
granted.
VI. Violations of A.R.S. §41-1009
Pursuant to A.R.S. §41-1092.01(C)(9) (c), the OAH reports that it has no knowledge of violations of
A.R.S. §41-1009 by any agency.
VII. Recommendations for Changes in the
Administrative Procedures Act
Uniformity:
The regulated community has long complained about inconsistent procedures among the various
agencies. The following recommendations are meant to point to the areas where greater consis-tency
can be accomplished:
1. Establish uniform standards for appeal rights notice.
Currently there are no standards for how, and with what degree of specificity, appeal rights
should be communicated to parties once the agency has acted.
2. Establish uniform basis for rehearing.
Parties must research the specific rules of each agency, board or commission to determine
the bases for rehearing since there is little uniformity. Standardizing and recapitulating
bases in Title 41 would make the process easier, particularly for the unrepresented.
3. Expand the right to settlement conferences to include “contested cases”.
A.R.S. §41-1092.03 provides that appellants to “appealable agency actions” be entitled to
settlement conferences with an agency representative. No such right exists for “contested
cases”, which include most disciplinary proceedings. Such a conference may be benefi-cial
in expediting disposition of cases.
4. Conform Rehearing and Appeal Rules.
Currently parties have 30 days from service of an agency’s final action, presumed after 5
days of mailing to the party’s last known address, to request a rehearing under A.R.S. §41-
1092.09(A)(1) and A.R.S. §41-1092.09(C). However, pursuant to A.R.S. §12-904(A),
parties have 35 days to file an appeal to Superior Court upon service, presumed after 5
days of mailing to the party’s last known address. Conforming the time limits for filing
appeals and requesting rehearings will simplify the process by eliminating varying time
17
limits for parties to act on final orders and will allow agencies to frame the effective dates
of their final orders to a single date.
5. Recoupment of Costs for Administrative Hearings:
Billed costs to non-General Fund supported agencies, boards and commissions (ISA
agencies), pursuant to A.R.S. §41-1092.01(E) and (K) could be recouped by them by
extending the statutory authority found in isolated statutes to all such ISA agencies. An
example of statutory authority for recoupment is found in A.R.S §32-128(H) which permits
the Board of Technical Registration to recoup certain costs:
H. On its determination that a registrant or a home inspector has
violated this chapter or a rule adopted pursuant to this chapter, the
board may assess the registrant or the home inspector with its reason-able
costs and expenses incurred in conducting the investigation and
administrative hearing. All monies collected pursuant to this subsection
shall be deposited, pursuant to sections 35-146 and 35-147, in the
technical registration fund established by section 32-109 and shall only
be used by the board to defray its expenses in connection with disci-plinary
investigations and hearings. Notwithstanding section 35-
143.01, these monies may be spent without legislative appropriation.
To avoid any appearance of impropriety by the ISA agencies, such recoupment might be
narrowly tailored to settlements or to cases where the ISA agency prevails before the
independent Administrative Law Judge, or only as incident to disciplinary orders.
VIII. Recommendation for Changes or
Improvements in Agency Practice with Respect to
the Administrative Procedures Act
Statutory Guidance in Definition of “Physical Injury” under A.R.S. §8-
201
As of June 30, 2002, the OAH has concluded in excess of 1,200 cases under A.R.S. §8-811. The
statutory scheme provides that those who are facing substantiation of reports of child abuse or
neglect, and therefore deposit of these reports in the State’s Central Registry for 25 years, be
accorded the right to have the State demonstrate “probable cause” before the OAH’s independent
tribunals. Experience has shown that the current scheme is inadequate or uncertain in a key area
requiring statutory clarification.
Title 8 does not define “physical injury” as it applies to abuse under A.R.S. §8-201. One position
is that the statute is one of strict liability. Under that viewpoint, any physical injury, if observable,
constitutes abuse. This is true regardless of how minimal, or whether it is sustained by a child as
a consequence of parental discipline or attempts to control the behavior of a child, or even as the
result of accident. Another viewpoint sees the terms, “infliction of or allowing” physical injury
found in A.R.S. §8-201 as requiring some minimal bad intent, thus allowing reasonable mitigation
18
in cases of manifest accident. Still another position applies the defenses to assault found in
A.R.S. §13-403 to the concept of “physical injury” to recognize some leeway in parental discipline.
In the absence of clear standards, some Administrative Law Judges apply the definition of “physi-cal
injury” found in A.R.S. §13-3623(A)(4), or use it for guidance. These judges are generally
uncomfortable using the Title 13 statute, but at the same time feel obligated to have at least some
statutory foundation for their determinations as to when there has been “abuse” as defined in Title
8. In either of these situations, Administrative Law Judges may or may not apply the defenses of
A.R.S. §13-403, depending on whether abuse is considered strict liability. Other Administrative
Law Judges, finding the use of the criminal statutes inappropriate, because of lack of notice to the
appellant, do not apply either A.R.S. §13-3623(A)(4) or A.R.S. §13-403. In many cases physical
injury is so manifest, and so obviously the result of intentional unjustified acts, that the lack of
definition presents no difficulty. However, many situations which are not obvious cases of abuse
can become subjective ad hoc decisions. Likewise, similar facts may be viewed differently by
different Administrative Law Judges, resulting in opposing orders.
19
APPENDICES
1. Cost Allocation Methodology
2. Newsletters
3. Agenda: National Conference of Central
Panel Directors
Appendix A
Cost Allocation Methodology
As mandated by the Legislature, a new cost allocation method was adopted beginning FY 2001
to fairly distribute costs to each 90-10 agency, board and commission (ISA agency) for services
rendered by the Office of Administrative Hearings (OAH).
Overview
OAH has entered into Intergovernmental Service Agreements with the ISA agencies which
involve the quarterly transfer of funds by each to the OAH ISA fund. As described below, OAH
ensures that the revenues from the ISA agencies are tracked, as well as how these revenues are
allocated to the total expenditures of OAH. Attached as exhibit 1 is a typical ISA agreement that
reflects the cost allocation plan, and OAH’s method for accounting to the ISA agencies and FY
end reconciliation.
Methodology for Tracking ISA Revenues and Usages:
Step One (data entry):
On a monthly basis, OAH enters the following information into an excel workbook
(designated as “Global”), divided into 12 worksheets by month:
1. The cases filed by each ISA agency as well as the hours billed by
administrative law judges for ISA agency. The same information is
entered all general funded agencies as a group.
2. The amount expended for each ISA agency for travel or interpreters. The
same information is for all general funded agencies as a group.
3. The adjusted billable rate (PS with ERE included) for each ALJ and staff
member as well as the hours in pay status.
4. The non salary costs for the month (minus travel and interpreters)
entered by object code.
Step Two (propagation to monthly spreadsheets):
This information is propagated in separate excel workbook for each month, divided into
separate worksheets for each ISA agency and for the general fund agencies as a group.
Each worksheet automatically determines the fractional allocation of the total operational
costs of OAH for the month by pool to each ISA agency according to the cost allocation
plan which is attached as Attachment A of exhibit 1. Each monthly workbook is audited
to make sure that the total expenditures for each month total all allocations made to each
ISA agency and to the general funded agencies as a group.
Step Three (generation of monthly statements):
A monthly statement showing the relevant data propagated from “Global” and the ISA
agency’s allocation is sent to the ISA agency. An example and discussion follows for a
hypothetical board:
Billed
Hour
Pool
Percentag
e Pool
Billed Hours
(ALJ Salary)
Percentage of
Cases (Indirect
Costs)
Monthly
Salary
Total
Billed
Hours
Agency Billed
hrs
Agency Pool
Cost
Total Cases
Filed
Total
Agency
Cases Filed
Total
Operating
Expenses
*
Agency
Pool
Cost
788.00 2.00 88,028.86 $223.42
Grant Winston 6,311.20 129.60 0.00 0.00
George Schade 6,603.76 133.70 0.00
Kay Abramsohn 6,552.24 108.95 0.00 0.00
* Staff PS and ERE Plus Other
Operating expense minus travel and
interpreters
Casey
Newcomb 6,322.24 111.40 0.00 0.00
Allen Reed 5,474.00 128.80 0.00 0.00
Actual
Cost Pool
0.00 0.00 0.00 Actual expenses
Gary Strickland 6,322.24 117.60 14.10 758.02 Interpreters Travel
Agency
Pool
Cost
Sondra Vanella 5,726.08 105.20 0.00 0.00 0.00 0.00 0.00
Daniel Martin 6,097.76 147.90 0.00 0.00
Dorinda Lang 6,313.04 102.77 0.00 0.00
Maurice
McWhirter 5,757.36 0.00 0.00 0.00
0.00 0.00 0.00
Bob Worth 6,800.64 127.96 0.00 0.00
Lewis Kowal 6,309.36 143.10 0.00 0.00
Brian Tully 6,311.20 88.40 5.30 378.39 Total Costs
Mark Silver 5,312.08 109.60 0.00 0.00
Eric Bryant 6,513.60 112.70 0.00 0.00 Percentage Pool 223.42
Mike Douglas 6,460.24 165.71 0.00 0.00 Billed Hour Pool 1,136.41
Diane Mihalsky 6,200.80 137.80 0.00 0.00 Actual Expense Pool 0.00
Anthony Halas 6,081.20 170.60 0.00 0.00
Gregory
Hanchett 6,309.36 101.75 0.00 0.00 Total Pool Costs 1,359.83
TOTAL 19.40 1,136.41
The “Billed Hours Pool” reflects the number of hours expended by each administrative
law judge for the hypothetical board. Each hour is divided by the total hours billed by that
judge to all agencies, boards and commissions (including general funded) and multiplied
by the total personal services (PS) and employee related expenses (ERE) of the judge
for the month. The “Percentage Pool” reflects the number of cases filed by the
hypothetical board. The total number of cases filed by the hypothetical board is divided
by the total number of cases filed by all agencies, boards and commissions (including
general funded) and multiplied by the total operating costs of the OAH (minus PS and
ERE for judges, travel and interpreters). The “Actual Expenses Pool” reflects the costs for
travel or interpreters expended for the hypothetical board. The “Total Costs” section
summarizes and adds together the total costs to the hypothetical board based on these
three pools. These costs are reflected in the running monthly ledger statement
(discussed below). Each monthly statement is accompanied by details of the exact
cases filed by the board or commission and the exact hours expended by each judge for
specific cases for that month. The number of cases detailed will equal the number cases
filed by the board in the monthly billing statement. The total hours detailed will equal the
hours totaled for the board.
Step Four (generation of monthly cumulative ledgers):
As discussed above, accompanying the monthly statement is a monthly ledger statement
which summarizes each monthly billing and each quarterly deposit, together with a
running balance of billings versus deposits. As of March 1, 2002, the hypothetical
agency deposited $20,550 in three installments of $6,850, with a total of $6,540.43 in
assessed costs ($882.34 for cases assessment and $5,658.08 for billed administrative
law judge time), with a running positive balance of $14,009.57. Note the January entry
which reflects the monthly billing statement discussed above.
Costs July August September October November December January February March April May June
Percentage Pool
(Charge for case
settings)
282.99 0.00 0.00 258.29 0.00 117.64 223.42 0.00 0.00 0.00 0.00 0.00
Billed Hour Pool
(ALJ hourly billing)
152.58 664.59 745.65 56.68 682.70 1,273.11 1,136.41 946.37 0.00 0.00 0.00 0.00
Actual Expense
Pool
(travel/interpreters)
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Total Pool Costs 435.57 664.59 745.65 314.97 682.70 1,390.75 1,359.83 946.37 0.00 0.00 0.00 0.00
Quarterly
Contributions
6,850.00 6,850.00 6,850.00 6,850.00
Balance 6,414.43 5,749.84 5,004.19 11,539.22 10,856.52 9,465.77 14,955.94 14,009.57 14,009.57 20,859.57 20,859.57 20,859.57
Summary:
The Office of Administrative Hearings through its integrated system of spreadsheets is able to
track all revenues and uses for its ISA’s with the 90-10 boards and commissions consistent with
the Legislature’s mandate and sound accounting principles.
EXHIBIT 1
INTERAGENCY SERVICE AGREEMENT: ISA NUMBER XXX
The following Agreement is entered into by Hypothetical Board (Hypothetical Board) and
the Arizona Office of Administrative Hearings (OAH). This reflects the sole agreement between
the parties.
1.0 TERM OF AGREEMENT
The term of this Agreement shall begin on July 1, 2002.
2.0 AUTHORITY
This Agreement is entered into pursuant to A.R.S. §41-1092.01(E)
3.0 PURPOSE OF AGREEMENT
This Agreement is entered into pursuant to A.R.S. §41-1092.01(E) Hypothetical Board is
to contract for services to be provided by OAH in conducting administrative hearings.
4.0 MANNER OF FINANCING
Hypothetical Board shall send to the OAH the total sum of $27,400 in quarterly
installments of $6,850.00. These quarterly amounts will be sent to OAH within 5 business
days of the commencement of the quarter by means of a companion transaction form to
be prepared by OAH and submitted to Hypothetical Board for approval.
OAH shall calculate the costs of providing services on a monthly basis in accordance
with actual, allowable costs incurred consistent with the Billing Allocation Plan attached
as appendix A. The OAH will reconcile total FY 2003 costs and payments on the next
business day following July 1, 2003, crediting quarterly installments to monthly costs. In
the event of underpayment, Hypothetical Board will be responsible for the payment of
any deficiency upon receipt of a companion transaction form prepared by OAH. In the
event of overpayment, OAH will return unearned payment in a companion transaction
prepared by OAH. Final reconciliation and the appropriate companion transaction will be
transmitted to Hypothetical Board by the next business day following July 4, 2003.
Notwithstanding the above, the OAH will project the costs of June 2003 and present a
projected reconciliation by the next business day following June 15, 2003. If on such
date, after accounting for projected June costs, Hypothetical Board has a projected
positive balance, OAH will return the projected balance to Hypothetical Board. Final
reconciliation will then be effected as provided by the previous paragraph.
5.0 REPORTING
Except as provided in Paragraph 4.0 regarding final reconciliation, OAH shall submit
monthly expenditure reports and supporting documentation to Hypothetical Board s
Financial Administrator within 15 business days after the end of each month. These
reports shall further detail and certify the costs incurred for hearing activities and account
for quarterly amounts deposited, year to date monthly costs credited against year to date
quarterly deposits, the balance remaining in quarterly deposits, and year to date
deficiencies.
6.0 AMENDMENT OF AGREEMENT
Any amendments to this Agreement shall be in writing and signed by both parties.
7.0 TERMINATION OF AGREEMENT
This Agreement shall terminate upon the repeal of A.R.S. §41-1092.01(E) requiring
Hypothetical Board to contract with the OAH for services or June 30, 2003.
8.0 NOTICES
OAH and the Hypothetical Board shall address all correspondence relative to this
Agreement through individuals that shall be designated in writing from time to time by
each agency.
FOR AND ON BEHALF OF THE HYPOTHETICAL BOARD
________________________________ __________________________________
Name: (Date)
Title:
FOR AND ON BEHALF OF THE ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS
________________________________ __________________________________
CLIFF J. VANELL (Date)
Director
APPENDIX A: BILLING ALLOCATION PLAN
The Hypothetical Board Hypothetical Board (Hypothetical Board) will be billed on
a quarterly basis for its use of the personnel and services of the Office of
Administrative Hearings in the following manner:
1. Percentage pool:
The total (1) operating expenses, and (2) personal services and employee
related expenses of the management and case management support
teams will be determined on a monthly basis. One time sweeps for state-owned
building rent, risk management charges, health dental, life
insurance premiums, etc. will be amortized over the twelve month fiscal
year. This amount will be multiplied by a fraction whose numerator is the
number of cases for Hypothetical Board filed for the same monthly period,
and whose denominator is the total number of OAH cases filed in the
same monthly period. This amount will be billed to Hypothetical Board.
2. Billed hour pool:
The total personal services and employee related expenses of each
administrative law judge will be determined and converted to an hourly
rate. This hourly rate will be multiplied by the hours in pay status. This
product will be multiplied by a fraction whose numerator is the number of
hours billed to Hypothetical Board for the same monthly period, and
whose denominator is the total hours billed by the administrative law judge
to all other agencies participating in the Billing Allocation Plan in the same
monthly period. This amount will be billed to Hypothetical Board.
3. Actual expense pool:
The actual expense for travel, outside consultants and other specific case
expenditures will be determined on a monthly basis and billed to
Hypothetical Board.
Official Newsletter of the Arizona Office of Administrative Hearings
The
OAH Vol.
21
October 2001
The Office of Administrative Hearings (OAH) began operations on January 1, 1996.
Administrative Hearings previously provided by regulatory agencies (except those
specifically exempted) are now transferred to the OAH for independent proceed-ings.
Our statutory mandate is to “ensure that the public receives fair and inde-pendent
administrative hearings.”
The process of unifying the administrative hearings function in OAH-style agencies
began in 1945 with California. The current states having adopted the model, with
year of inception are: Arizona (1996), California (1961), Colorado (1976), Florida
(1974), Georgia (1995), Illinois (1997), Iowa (1986), Kansas (1998), Louisiana (1996),
Maryland (1990), Massachusetts (1974), Michigan (1996), Minnesota (1976), Mis-souri
(1965), New Jersey (1979), North Carolina (1986), North Dakota (1991), Oregon
(1999), South Carolina (1994), South Dakota (1994), Tennessee (1975), Texas
(1991), Washington (1981), Wisconsin (1978) and Wyoming (1987).
Mission Statement:
We will contribute to the quality of life in the State of Arizona by fairly and impartially hearing
the contested matters of our fellow citizens arising out of state regulation.
www.azoah.com
Jane Dee Hull
Governor
Cliff J. Vanell
Director
“Memoranda”
continued page 2
Director’s note: OAH is committed to fairness and making hearings accessible
to all. This article is part of a series of informational articles to educate the public
and parties who appear before us about the hearing process and how to better
present their cases. The following article may be found at OAH’s website at
www.azoah.com along with all previous articles published in the OAH Newsletter.
DISCOVERY-THE KEY TO UNLOCKING
THE “MYSTERY” BEHIND
AN ADMINISTRATIVE HEARING
By Sondra J. Vanella, Administrative Law Judge
Discovery is a pre-hearing device that can be used by each
party to obtain facts and information about the case from the
opposing party, in order to prepare for an administrative hear-ing.
There are no formal rules governing the discovery process
in an administrative hearing. However, discovery should be
calculated to lead to reliable and probative information. In some
cases, parties may have another related matter pending in
court. The administrative forum should not be viewed as an
opportunity to obtain information solely for use in another court
proceeding. Discovery must be relevant to the issues that will
be addressed at the hearing.
Generally, discovery is limited in administrative proceedings.
However, there are several methods accessible to both repre-sented
and unrepresented parties, which can facilitate the
gathering of relevant information. Perhaps the easiest and most
often overlooked tool is a review of the case file. Parties are
encouraged to examine the case file forwarded to the Office of
Administrative Hearings by the referring agency, prior
“Discovery”
continued page 2
Pre-Hearing and
Post-Hearing Memoranda
by Dorinda Lang, Administrative Law Judge
Written memoranda are not always requested or neces-sary
in hearings before the Office of Administrative
Hearings (“OAH”). If the Administrative Law Judge
requests one, however, he or she expects the parties to
submit them and in a timely manner (the time for submis-sion
being set by the Administrative Law Judge).
Arizona Administrative Code R2-19-116(G) specifically
allows the Administrative Law Judge to “permit or require”
written memoranda to be submitted after the close of a
hearing. The Administrative Law Judge may also permit
or require the parties to submit one before the hearing,
particularly as a result of a pre-hearing conference under
A.A.C. R2-19-112.
If a party wishes to submit a memorandum for consider-ation
by the Administrative Law Judge without having
been requested to do so, the best time to submit it is at
least a couple of days prior to the hearing. The OAH staff
files documents received in the course of business
pursuant to A.A.C. R2-19-108. This rule merely allows
the OAH staff to file documents in the appropriate case
file. It states that “documents” that can be filed may
include briefs, which are essentially the same thing as
memoranda. The rule also requires that a copy be served
on all parties.
page 2
*1.05% of ALJ recommended decisions were certified as final by the OAH due
to agency inaction.
** Cases which were vacated are not included
“Discovery”
continued from page 1
1st Quarter Statistics At A Glance
Acceptance Rate:
ALJ findings of fact and conclusions of law were accepted in 97.67%
of all recommended decisions acted upon by the agencies.* ALJ
decisions, including recommended orders, were accepted without
modification in 94.62% of all recommended decisions acted upon by
the agencies. 70.60% of all agency modification was of the order
only (i.e. penalty assessed).
Appeals to Superior Court:
The appeal rate was 1.58% defined as appeals taken (16) over
hearings concluded (1010**).
Rehearings:
The rehearing rate was .40%, defined as rehearings scheduled (4)
over hearings concluded (1010**).
Completion Rate:
The completion rate was 62.04%, defined as cases completed
(1759) over new cases filed (1010).
Continuance:
The average length of a first time continuance based on a sample of
cases (first hearing setting and first continuance both occurred in the
1st quarter) was 60.35 days. The frequency of continuance, defined
as the number of continuances granted (1370) over the total number
of cases first scheduled (2821), expressed as a percent, was
48.56%. The ratio of first settings (2863) to continued settings on
the calendar (239) was 1 to 0.08.
Dispositions:
Hearings conducted: 57.4%; vacated prior to hearing: 40.3%;
hearings withdrawn by agency: 2.3%.
Contrary Recommendations and Agency Response: 23.99% of
recommendations were contrary to the original agency action where
the agency took a position. Agency acceptance of contrary
recommendations was 89%.
to the hearing. This enables the parties
to become familiar with the documents
that the agency (assuming the agency is
a party) or other party may use during the
hearing, and affords the opportunity to
gather whatever documentation the party
feels is necessary in order to present the
case to theAdministrative Law Judge
(“ALJ”). Parties may obtain copies of the
case file at their own expense.
The most common form of discovery is
the issuance of subpoenas to compel the
attendance of witnesses and the produc-tion
of documents. This may be re-quested
by either or both parties without
notifying the opposition of
such request. Subpoenas
for the production of docu-ments
may be issued by the
ALJ if the party seeking
documents demonstrates
that they are relevant to the
issues in dispute. The ALJ
may require a brief statement
supporting the necessity of a
particular witness to appear,
or the relevancy of the
documents being sought.
Documents may be subpoe-naed
from individuals,
businesses, and governmen-tal
agencies.
The deposition is a limited
discovery technique that can
be exercised when a witness
is unavailable to attend the
hearing. Should a witness
be unavailable to testify at
the hearing, either party may
petition the assigned ALJ to
permit a deposition to be
taken to be used as evidence
at the hearing. This is
because the person being
deposed is under oath and
subject to cross examination
during the deposition.
The pre-hearing conference
is not a discovery tool per se,
but parties seeking assis-tance
with discovery, or who
seek clarification of issues,
may request a pre-hearing conference.
On occasion, an ALJ may order a pre-hearing
conference without a request
from either party. The pre-hearing
conference may be used to clarify or limit
procedural, legal, and factual issues,
thereby alleviating a degree of uncer-tainty
about the proceeding. The ALJ
may order the parties to exchange
documents and/or lists of witnesses and
exhibits intended to be used during the
hearing. It also affords the parties an
opportunity to discuss settlement.
Discovery, if utilized appropriately,
promotes a meaningful and efficient
hearing, with both parties prepared to
present and address relevant evidence
and legal arguments.
Once the hearing is over, however, the
only documents accepted by the
Administrative Law Judge are those
already requested prior to the end of the
hearing and for which the record was
specifically held open. Memoranda
submitted after the close of the hearing,
if not previously requested by the
Administrative Law Judge, will be
returned in the mail with a letter stating
that the record in the matter has been
closed.
A party or representative appearing at
an OAH hearing may be faced with
writing a pre-hearing or post-hearing
memorandum at the request of the
Administrative Law Judge when they
had no intention of doing anything so
technical for the case. Those without
legal experience may feel a bit over-whelmed
by the prospect and be
concerned about what to submit.
But a memorandum is nothing more
than a very short position paper. A brief
statement of the case and why the party
believes it should prevail, clearly stated
and amenable to reason, should suffice.
If the party is relying on a particular
statute or rule, a proper citation is
appropriate. If referencing an agency
policy or other document, attach a copy
of it to the memorandum.
Organization of points into separate
headings, formulation of clear thoughts
and use of appropriate sentence
structure may make the party’s case
more clear and memorable to the
Administrative Law Judge, possibly
increasing the chances of receiving a
favorable recommendation. Thus, the
task of writing a memorandum is usually
viewed as an opportunity rather than a
chore.
If, for any of the above reasons, you are
submitting a memorandum for a hearing
at the Office of Administrative Hearings,
keeping the above points in mind will
help you make your case.
“Memoranda”
continued from page 1
Average Time Between Selected Events - Appealable Agency Actions v.
Contested Cases*, July 1 - September 30, 2001
1.25
10.48 10.58
43.54
8.24
0.84
16.5
56.48
0
10
20
30
40
50
60
Request for Hearing to
Scheduling
Scheduling to First
Hearing Date
Conclusion of Hearing
to ALJ Decision
ALJ Decision to Agency
Action
Days
AAA
CC
Arizona Hosts Central Panel Directors
Meeting
The annual conference of Central Panel Directors will be
held at the Hyatt Regency Hotel in downtown Phoenix from
December 5-8, 2001. Cliff J. Vanell, the Director of the
Office of Administrative Hearings for the State of Arizona
(“OAH”), will host several functions during the conference.
Representatives are expected from Alabama, Arizona,
California, Chicago, Colorado, Florida, Georgia, Iowa,
Louisiana, Maryland, Maine, Massachusetts, Michigan,
Minnesota, Missouri, New Jersey, New York City, North
Carolina, North Dakota, Oregon, South Carolina, Tennes-see,
Texas, Washington, Washington DC, Wisconsin, and
Wyoming. The agenda will include refining approaches to
case management and technology, attracting and retaining
administrative law judges, increasing public accessibility to
the administrative process, and procedural rules.
Agency accepts w ithout modification
93.69%
Agency amends findings of facts/conclusions
of law only
1.26%
Agency rejects the recommended decision
1.05%
ALJ decision certified as final upon agency
inaction
1%
Agency amends recommended order only
3.02%
Agency Response to Recommended Decisions July 1 - September 30, 2001
1336
18 43 15 14
0
200
400
600
800
1000
1200
1400
1600
Agency accepts without
modification
Agency amends findings
of facts/conclusions of
law only
Agency amends
recommended order only
Agency rejects the
recommended decision
ALJ Decision Certified as
Final Upon Agency
Inaction
cases
2835 Cases Filed July 1, 2001 - September 30, 2001
*Note: Appealable Agency Actions are agency actions taken before an opportunity for a hearing.
A typical example would be the denial of a license. A party is entitled to a hearing before the
OAH before the action becomes final. Contested Cases involve actions yet to be determined by
an agency. An example would be proposed discipline on a professional license with the possibility
of suspension or revocation. Parties are entitled to a hearing before the OAH prior to the agency
acting.
page 3
1st Q FY 2002 1st Q FY 2002 1st Q FY 2002
Accountancy
Acupuncture Board
ADA
Administration
Admin. Parking
Agriculture
Ag. Emply. Rel. Bd.
AHCCCS
Alternative Fuel
Appraisal
AZ Commission on the Arts
Attorney General
Arizona Works
Banking
Behavioral Health Ex.
Building/Fire Safety
Charter Schools
Chiropractic
Clean Elections
Community Colleges
Cosmetology
Dental
Economic Security
Economic Security-CPS
Education
Environ. Quality
Funeral
Gaming
Health Services
Insurance
Land
Liquor
Lottery
Maricopa Cty. Housing
Medical Examiners
Naturopathic
Nursing
Nursing Care Admin
Osteopathic
Parks
1004
50
20 2011
50030
10
7
64
0100
1004
50
20
201150030
10
7
64
0100
Peace Ofc. Standards
Pest Control
Physical Therapy
Podiatry
Psychologist Examiners
Public Safety - CW
Public Safety - Trans
Public Safety - Adult CC
Pvt. Post. Ed.
Racing
Radiation Regulatory
Registrar of Contr.
Real Estate
Revenue
School - Deaf & Blind
Secretary of State
Technical Registration
Water Qual. App. Bd.
Water Resources
Weights and Measures
840
51
2
14
00
46
22
3
17
0120
11
000
20000320
0
4
0
409
30
12
00
3
0
5
26
840
51
2
14
00
46
22
3
17
0120
11
000
2000032004
0
409
30
12
00305
26
Questions:
1. Attentiveness of ALJ
2. Effectiveness in explaining the hearing process
3. ALJ’s use of clear and neutral language
4. Impartiality
5. Effectiveness in dealing with the issues of the case
6. Sufficient space
7. Freedom from distractions
8. Questions responded to promptly and completely
9. Treated courteously
Evaluations of OAH Services
Note: The four major groups of those who responded
are: represented private party; unrepresented private
party; counsel for a private party; and counsel for the
agency. The evaluations are filled out immediately after
the hearing and the evaluations are not disclosed to the
ALJ involved.
Office of Administrative Hearings
1400 West Washington, Suite 101
Phoenix, Arizona 85007
This publication is available in alternative formats.
The OAH is an equal opportunity employer.
Unrepresented Responses 1st Quarter
0
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All R esponses 1st Quarter
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Official Newsletter of the Arizona Office of Administrative Hearings
The
OAH Vol.
22
January 2002
The Office of Administrative Hearings (OAH) began operations on January 1, 1996.
Administrative Hearings previously provided by regulatory agencies (except those
specifically exempted) are now transferred to the OAH for independent proceed-ings.
Our statutory mandate is to “ensure that the public receives fair and inde-pendent
administrative hearings.”
The process of unifying the administrative hearings function in OAH-style agen-cies
began in 1945 with California. The current states having adopted the model,
with year of inception are: Arizona (1996), California (1961), Colorado (1976),
Florida (1974), Georgia (1995), Illinois (1997), Iowa (1986), Kansas (1998), Louisiana
(1996), Maine (1992), Maryland (1990), Massachusetts (1974), Michigan (1996),
Minnesota (1976), Missouri (1965), New Jersey (1979), New York City (1979), North
Carolina (1986), North Dakota (1991), Oregon (1999), South Carolina (1994), South
Dakota (1994), Tennessee (1975), Texas (1991), Washington (1981), Wisconsin
(1978) and Wyoming (1987).
Mission Statement:
We will contribute to the quality of life in the State of Arizona by fairly and impartially hearing
the contested matters of our fellow citizens arising out of state regulation.
www.azoah.com
Jane Dee Hull
Governor
Cliff J. Vanell
Director
“Website Overview”
continued page 3
Helping us help you: www.azoah.com
MAKING THE MOST OF THE OAH
WEBSITE
There are two images that often come to my mind as I think
about how people must feel about coming to a hearing. One is the
image of my mother sitting alone on the couch in my living room in the
very early morning before the sun was up. She was staying at my
house in Gilbert, Arizona, visiting from Globe where she lived. She had
a small claims matter in a nearby justice court. She had been taken
from pillar to post and although she would never say so, I know she
was worried. She was expected to present her case before a perfect
stranger, in an unfamiliar place with no experience. Even though my
mother has been dead for almost ten years, my heart still goes out to
her. The other image is of a man I saw at the public library years ago
asking the librarian where the Arizona law was. After he was shown the
large set of books comprising the Arizona Revised Statutes and after
watching him puzzle through the index, I couldn’t help but think what
incredible barriers are set up for people who are not lawyers, but who
are nonetheless expected to know and obey the law. These two people
probably have no idea how they have affected the spirit of the OAH in
its formative years. It is to these two people, my mother and that
nameless man, that I dedicate our web page. May serving people like
them always be a focus of the “quality of life” that we proclaim in our
mission statement as being OAH’s reason for existing.
The OAH website is designed with the minimum of frills and
organized to get people to the right place as quickly as possible. An
outline of the homepage can be found on page 2.
The background of the OAH, including its mission
statement, logo, management philosophy and views of the
hearing rooms give parties a sense of the “feel” of the OAH.
The biographies of the Administrative Law Judges allow
parties to put a name to a face and learn about a judge’s
background. Along with links to the Arizona Revised
Statutes, Arizona Administrative Code and OAH’s proce-dural
rules, the OAH has included extensive cross refer-encing
to allow non-lawyers to quickly pick up practice
pointers and be able to put the law together with a minimum
of searching. For example, if a person goes to OAH’s
procedural rules, any rule which references another rule will
have a link to it, as well as any statute in the Uniform
Administrative Hearings Procedures that deals with the
same issue. Likewise, any reference in articles dealing with
practice pointers or any response to a frequently asked
question that refers to any rule or statute will have links.
The OAH Portal is an important asset to parties
since it allows parties to directly access OAH’s docket to
view case settings, rulings, receipt of documents and other
information. Parties can also quickly research any important
considerations regarding attorney representation. Parties
also have the ability to file motions on line and
*1% of ALJ recommended decisions were certified as final by the OAH due to
agency inaction.
** Cases which were vacated are not included
page 2
2nd Quarter Statistics At A Glance
Acceptance Rate:
ALJ findings of fact and conclusions of law were accepted in 97.54% of all
recommended decisions acted upon by the agencies.* ALJ decisions, including
recommended orders, were accepted without modification in 94.5% of all
recommended decisions acted upon by the agencies. 68.85% of all agency
modification was of the order only (i.e. penalty assessed).
Appeals to Superior Court:
There were 15 appeals filed in Superior Court. 3 appeals involved 1086
consolidated cases; 12 appeals involved separate cases.
Rehearings:
The rehearing rate was .415%, defined as rehearings scheduled (4) over hearings
concluded (965**).
Completion Rate:
The completion rate was 90.31%, defined as cases completed (1622) over new
cases filed (1796).
Continuance:
The average length of a first time continuance based on a sample of
cases (first hearing setting and first continuance both occurred in the 2nd
quarter) was 45.7 days. The frequency of continuance, defined as the
number of continuances granted (198) over the total number of cases first
scheduled (1804), expressed as a percent, was 10.98%. The ratio of first
settings (1641) to continued settings on the calendar (1322) was 1 to
0.806.
Dispositions:
Hearings conducted: 59.5%; vacated prior to hearing: 37.7%; hearings
withdrawn by agency: 2.8%.
Contrary Recommendations and Agency Response: 19.71% of
recommendations were contrary to the original agency action where the
agency took a position. Agency acceptance of contrary recommenda-tions
was 88.32%.
OAH Website Structure at a Glance (underlines indicate links)
BACKGROUND OF THE OFFICE
Our Mission Statement
Our Logo
Our Newsletter
The Director
Views of the Office
FREQUENTLY ASKED QUESTIONS
What is an Administrative Law Judge?
What is a hearing like?
Do I need a lawyer?
How do I know what rules to follow?
Will there be a record?
Where do I send requests?
What if I need a delay?
How do I ask the judge to do something?
How do I subpoena witnesses?
What if I need special accomodations?
Are there forms I can use?
How can I appeal my decision?
YOUR ASSIGNED ADMINISTRATIVE LAW JUDGE
You can find a biography and a picture of the
assigned judge as well as former judges who are
our distinguished alumni.
RESEARCH PROCEDURES, STATUTES AND RULES
AFFECTING YOUR CASE
OAH Procedural Rules
Uniform Administrative Hearings Procedures These
are statutory provisions establishing the OAH and outlining the
appeals process. For specific procedures involving your case,
see the OAH Procedural Rules (above).
Link to Arizona Administrative Code Here you can
research the rules promulgated by the agency that may impact
your case.
Link to Arizona Revised Statutes (A.R.S.) by title.
Notices of Hearing provided by agencies will refer to these
statutes. The number appearing immediately after the “A.R.S.”
refers to the title.
RESEARCH YOUR CASE (PORTAL)
The OAH portal allows you to research your case by
matter number (certain cases will not appear due to
confidentiality requirements).
ATTORNEY ISSUES
See Do I need a lawyer?
Rule 31, Rules of the Supreme Court This rule provides
exceptions to the general rule regarding attorney representation
before the OAH.
Rule 33(d), Rules of the Supreme Court - Out of State
Attorneys: Application Process to Appear Pro Hac
Vice (Note: This on-line application is consistent with the Order
of the Supreme Court suspending the amendments to Rule
33(d), as adopted on October 9, 2001.)
OAH NEWSLETTER
Articles from the OAH Newsletter The OAH newsletter is
published quarterly. It contains informative articles and
statistics as well as practice pointers.
Newsletters in PDF format
Previous Quarter Statistics Performance measures as
reported in the OAH Newsletter.
MOTIONS
Sample subpoena form
Compose motions or respond to motions online
Agency accepts w ithout modification
93.41%
Agency amends findings of facts/conclusions of
law only
1.32%
Agency rejects the recommended decision
1.11%
ALJ decision certified as final upon agency
inaction
1%
Agency amends recommended order only
2.91%
Agency Response to Recommended Decisions October 1 - December 31, 2001
1347
19 42 16 18
0
200
400
600
800
1000
1200
1400
1600
Agency accepts w ithout
modification
Agency amends findings of
facts/conclusions of law only
Agency amends
recommended order only
Agency rejects the
recommended decision
ALJ Decision Certified as
Final Upon Agency Inaction
cases
Average Time Between Selected Events - Appealable Agency Actions v.
Contested Cases*, October 1 - December 31, 2001
3.01
10.43 11.1
50.04
7.72
1.41
13.13
57.07
0
10
20
30
40
50
60
Request for Hearing to
Scheduling
Scheduling to First
Hearing Date
Conclusion of Hearing
to ALJ Decision
ALJ Decision to Agency
Action
Days
AAA
CC
1796 Cases Filed October 1, 2001 - December 31, 2001
*Note: Appealable Agency Actions are agency actions taken before an opportunity for a hearing.
A typical example would be the denial of a license. A party is entitled to a hearing before the
OAH before the action becomes final. Contested Cases involve actions yet to be determined by
an agency. An example would be proposed discipline on a professional license with the
possibility of suspension or revocation. Parties are entitled to a hearing before the OAH prior to
the agency acting.
page 3
2nd Q FY 2002 2nd Q FY 2002 2nd Q FY 2002
Accountancy
Acupuncture Board
ADA
Administration
Admin. Parking
Agriculture
Ag. Emply. Rel. Bd.
AHCCCS
Alternative Fuel
Appraisal
AZ Commission on the Arts
Attorney General
Arizona Works
Banking
Behavioral Health Ex.
Building/Fire Safety
Charter Schools
Chiropractic
Clean Elections
Community Colleges
Cosmetology
Dental
Economic Security
Economic Security-CPS
Education
Environ. Quality
Funeral
Gaming
Health Services
Insurance
Land
Liquor
Lottery
Maricopa Cty. Housing
Medical Examiners
Naturopathic
Nursing
Nursing Care Admin
Osteopathic
Parks
6006
72
20
2910
63030
16
12
125
0300
5002
22
00
899
1300065
61
0200
Peace Ofc. Standards
Pest Control
Physical Therapy
Podiatry
Psychologist Examiners
Public Safety - CW
Public Safety - Trans
Public Safety - Adult CC
Pvt. Post. Ed.
Racing
Radiation Regulatory
Registrar of Contr.
Real Estate
Revenue
School - Deaf & Blind
Secretary of State
Technical Registration
Water Qual. App. Bd.
Water Resources
Weights and Measures
11
80
63
0
28
03
72
47
2
19
01308100
3
11
000240
0
6
0
408
26
28
00
0
0
5
31
19
12
0
114
2
42
03
118
69
5
36
0250
19
100
5
11
0005600
10
0
819
56
40
0030
10
57
“Website Overview”
continued from page 1
download sample subpoena forms.
Ultimately the best designers of a website are those
that use it. The OAH welcomes any suggestions and can be
reached by e-mail at oah@azoah.com. We have included a link
to comments and questions on the website to make that
process easier.
Although the OAH welcomes direct contact to answer
questions, we suggest that parties try www.azoah.com first. The
OAH website can truly be a one-stop way to learn about
procedures, get valuable practice pointers, research your case,
find statutes and agency rules that affect your case.
Questions:
1. Attentiveness of ALJ
2. Effectiveness in explaining the hearing process
3. ALJ’s use of clear and neutral language
4. Impartiality
5. Effectiveness in dealing with the issues of the case
6. Sufficient space
7. Freedom from distractions
8. Questions responded to promptly and completely
9. Treated courteously
Evaluations of OAH Services
Note: The four major groups of those who responded are:
represented private party; unrepresented private party; counsel
for a private party; and counsel for the agency. The evaluations
are filled out immediately after the hearing and the evaluations
are not disclosed to the ALJ involved.
Office of Administrative Hearings
1400 West Washington, Suite 101
Phoenix, Arizona 85007
This publication is available in alternative formats.
The OAH is an equal opportunity employer.
Unrepresented Responses 2nd Quarter
0
50
100
150
200
250
300
350
Question 1
Question 2
Question 3
Question 4
Question 5
Question 6
Question 7
Question 8
Question 9
Excellent
Good
Average
Poor
All Responses 2nd Quarter
0
100
200
300
400
500
600
700
Question 1
Question 2
Question 3
Question 4
Question 5
Question 6
Question 7
Question 8
Question 9
Excellent
Good
Average
Poor
Official Newsletter of the Arizona Office of Administrative Hearings
The
OAH Vol.
23
April 2002
The Office of Administrative Hearings (OAH) began operations on January 1, 1996.
Administrative Hearings previously provided by regulatory agencies (except those
specifically exempted) are now transferred to the OAH for independent proceed-ings.
Our statutory mandate is to “ensure that the public receives fair and inde-pendent
administrative hearings.”
The process of unifying the administrative hearings function in OAH-style agen-cies
began in 1945 with California. The current states or cities having adopted the
model, with year of inception are: Arizona (1996), California (1961), Colorado
(1976), Florida (1974), Georgia (1995), Chicago (1997), Iowa (1986), Kansas (1998),
Louisiana (1996), Maine (1992), Maryland (1990), Massachusetts (1974), Michigan
(1996), Minnesota (1976), Missouri (1965), New Jersey (1979), New York City (1979),
North Carolina (1986), North Dakota (1991), Oregon (1999), South Carolina (1994),
South Dakota (1994), Tennessee (1975), Texas (1991), Washington (1981), Wiscon-sin
(1978) and Wyoming
Mission Statement:
We will contribute to the quality of life in the State of Arizona by fairly and impartially hearing
the contested matters of our fellow citizens arising out of state regulation.
www.azoah.com
Jane Dee Hull
Governor
Cliff J. Vanell
Director
“Motions”
continued page 2
Director’s note: OAH is committed to fairness and making hearings accessible to
all. This article is part of a series of informational articles to educate the public and
parties who appear before us about the hearing process and how to better present
their cases. The following article may be found at OAH’s website at
www.azoah.com along with all previous articles published in the OAH Newsletter.
A motion is an application to receive a ruling or
order directing that something be done favorable to the
applicant. Parties appearing before the Office of Administra-tive
Hearings have available to them several motions that
they may utilize in an effort to obtain a favorable outcome.
The following discussion identifies the more typical motions
utilized in administrative adjudication. The use of such
motions is limited to: (1) the timing requirements of the
Office of Administrative Hearings procedural rules set forth
in the Arizona Administrative Code, Title 2, Chapter 19
(A.A.C. R2-19-101 et seq.), and (2) the substantive
requirements of administrative law generally.
Motions filed concerning threshold (meaning, before
the Administrative Law Judge has convened the hearing on
the record) matters must be submitted to the Office of
Administrative Hearings in writing at least fifteen (15) days
prior to the date upon which the hearing is scheduled to
begin, or, with “leave” supported by a showing of good
cause (meaning, with the Administrative Law Judge’s
permission) to file at another time. A.A.C. R2-19-106(C). If
the opposing party chooses to object to the motion, the
responsive argument must be filed with the Office within five
(5) days of service, or as directed by the Administrative
Law Judge. A.A.C. R2-19-106(D). An otherwise appropri-ate
oral motion will be considered by the Administrative
Law Judge, however, if made during a prehearing
conference or during the hearing itself. A.A.C. R2-19-
106(B) and (C). The Administrative Law Judge will
typically issue a written ruling on the motion, without
delay, unless the motion is made orally and the Judge
determines to render a ruling from the bench. In either
case, the Administrative Law Judge will state sufficient
grounds for the denial of or granting of the motion to
advise the parties of the basis for the ruling.
Any motion that is presented to the Administra-tive
Law Judge, whether written or oral, is required to be
argued by the proponent (the one making the motion)
with specific knowledge of the facts and the law [where
necessary] upon which the motion is based. In other
words, the proponent should never blindly “throw up” an
application to the Judge hoping only that “something may
stick.” Integrity and good faith are presumed in the
submission of all motions.
While a “lay” person (i.e., a non-attorney) may
represent herself or an entity (where permitted by Rule
31 of the Arizona Rules of the Supreme Court) before the
Office of Administrative Hearings in certain contexts,
there is one context where it is absolutely necessary
MOTION PRACTICE AT THE OFFICE OF
ADMINISTRATIVE HEARINGS
Gary B. Strickland, Administrative Law Judge
page 2
*.6% of ALJ recommended decisions were certified as final by the OAH due to
agency inaction or rendered moot by settlement.
** Cases which were vacated are not included
“Motions”
continued from page 1
3rd Quarter Statistics At A Glance
Acceptance Rate:
ALJ findings of fact and conclusions of law were accepted in 97.8%
of all recommended decisions acted upon by the agencies.* ALJ
decisions, including recommended orders, were accepted without
modification in 95.17% of all recommended decisions acted upon by
the agencies. 70.51% of all agency modification was of the order
only (i.e. penalty assessed).
Appeals to Superior Court:
There were 21 appeals filed in Superior Court.
Rehearings:
The rehearing rate was .17%, defined as rehearings scheduled (2)
over hearings concluded (1162**).
Completion Rate:
The completion rate was 97.99%, defined as cases completed
(1996) over new cases filed (2037).
Continuance:
The average length of a first time continuance based on a sample of
cases (first hearing setting and first continuance both occurred in the
3rd quarter) was 42 days. The frequency of continuance, defined as
the number of continuances granted (1335) over the total number of
cases first scheduled (2032), expressed as a percent, was 65.7%.
The ratio of first settings (3125) to continued settings on the calendar
(1326) was 1 to 0.425
Dispositions:
Hearings conducted: 58.2%; vacated prior to hearing: 38.2%;
hearings withdrawn by agency: 3.6%.
Contrary Recommendations and Agency Response: 17.95% of
recommendations were contrary to the original agency action where
the agency took a position. Agency acceptance of contrary
recommendations was 84.87%.
that a licensed Arizona attorney partici-pate
in the process. That occurs when
an attorney who is licensed and in good
standing in another jurisdiction, but not in
Arizona, desires to represent a party.
Before the out-of-state attorney is
permitted to represent the party, he or
she must be admitted pro hac vice (“for
this case only”) to practice before this
Arizona tribunal. The Office of Adminis-trative
Hearings’ web site,
www.azoah.com, provides the proper
form and style for the submission of a
motion pro hac vice.
Another threshold
motion concerns the date
upon which the matter will be
heard. Sometimes, a party
will seek to have the hearing
continued to a later date
because some problem is
anticipated. More infre-quently,
a party will seek to
have the date upon which
the hearing is scheduled be
advanced to an earlier date,
the hearing accelerated,
because it is thought that a
need has arisen to have a
ruling on the issue(s)
presented as early as
possible. In either case,
A.R.S § 41-1092.05 (C) and
A.A.C. R2-19-110 require
that the party who requests
the change in the date for
hearing demonstrate good
cause to have the matter
moved to an earlier or later
day on the calendar. The
motion should be filed only in
support of a legitimate
purpose. Illegitimate reasons
for the filing of such a motion
would include that of delay or
merely to frustrate the
opposing party. It should be
noted that, generally, there is
a presumption that the
calendar should not be
disturbed. There are many
other citizens and public
entities whose cases are
awaiting a time slot within
which to air their grievances.
Therefore, in consideration of the
motion, in addition to observance of the
clearly stated requirements of statute
and rule, the Administrative Law Judge
will weigh the unfairness to the other
party of delay or expedition, should the
request be granted, against the particu-lars
of the asserted hardship that a
denial of postponement or advancement
would create. In preparation of the
motion, a party should be very careful
(1) to familiarize itself with the rule, (2)
ensure that it has good cause for the
request before it asks for a calendar
reassignment, and (3) not to expect that
the request will be granted as of right.
This last point holds fast even if the
opposing party does not object to the
motion.
Still further as a threshold
matter, a party may move to have a
change of venue, i.e., request that the
hearing be conducted at what the
moving party considers a more conve-nient
setting. However, in cases other
than those involving Registrar of Con-tractor
or Child Protective Services
matters, venue is generally strictly
confined to either Phoenix or Tucson. It
may occasionally be appropriate to
move a hearing between those two
locations due to the number of witnesses
situated in an area whereby Tucson
would be closer for travel as opposed to
Phoenix, or vice versa. OAH’s proce-dural
rules do not explicitly provide for
the filing of a venue motion. However,
such a motion will be nonetheless
considered, balancing private interests
with administrative efficiency.
It may also be true that a party
might want to have the Administrative
Law Judge render a ruling on an offer of
evidence that it intends to make at the
hearing or to limit or prevent the produc-tion
of prejudicial and irrelevant matter
that the other side may plan on raising.
The in limine motion should be used with
an intent to shorten the hearing and to
simplify the issues that will be ad-dressed.
Occasionally, a party will assert
a motion for a directed verdict in an
administrative case. This is inappropri-ate.
There is no place for a directed
verdict at an administrative hearing. The
more correct motion is one to dismiss.
Here, the moving party asserts that the
party who has the overall burden of
persuasion has failed to set forth
evidence on every element of the case
necessary to sustain a ruling in that
party’s favor. The opposing party feels it
unnecessary to put on a rebuttal case
because, legally speaking, there is
nothing to rebut or to defend against.
However, even should the Administrative
Law Judge be inclined to agree with the
party that has submitted the motion, it is
improbable that he or she will grant a
dismissal motion (or, more correctly in
most cases, recommend that the Agency
with jurisdiction grant the motion) so as
to make a complete record for review by
the Agency Director
Agency Response to Recommended Decisions January 1 - March 31, 2002
1557
18 43 18 5 5
0
200
400
600
800
1000
1200
1400
1600
1800
Agency accepts without
modification
Agency amends findings
of facts/conclusions of
law only
Agency amends
recommended order only
Agency rejects the
recommended decision
ALJ Decision Moot Due
to Settlement
ALJ Decision Certif ied
as Final Upon Agency
Inaction
cases
Agency accepts without modification
94.59%
Agency amends recommended order
only
2.61%
Agency amends findings of
facts/conclusions of law only
1.09%
Agency rejects the recommended
decision
1.09%
ALJ Decision Moot Due to Settlement
0.30%
ALJ Decision Certified as Final Upon
Agency Inaction
0.30%
Average Time Between Selected Events - Appealable Agency Actions v.
Contested Cases*, January 1 - March 31, 2002
2.13
10.26 10.04
45.9
7.06
1.34
14.29
52.41
0
10
20
30
40
50
60
Request for Hearing to
Scheduling
Scheduling to First
Hearing Date
Conclusion of Hearing
to ALJ Decision
ALJ Decision to Agency
Action
Days
AAA
CC
2037 Cases Filed January 1, 2002 - March 31, 2002
*Note: Appealable Agency Actions are agency actions taken before an opportunity for a hearing.
A typical example would be the denial of a license. A party is entitled to a hearing before the
OAH before the action becomes final. Contested Cases involve actions yet to be determined by
an agency. An example would be proposed discipline on a professional license with the
possibility of suspension or revocation. Parties are entitled to a hearing before the OAH prior to
the agency acting.
page 3
3rd Q FY 2002 3rd Q FY 2002 3rd Q FY 2002
Accountancy
Acupuncture Board
ADA
Administration
Admin. Parking
Agriculture
Ag. Emply. Rel. Bd.
AHCCCS
Alternative Fuel
Appraisal
AZ Bd. Occup’l Therapy
Attorney General
Arizona Works
Banking
Behavioral Health Ex.
Building/Fire Safety
Charter Schools
Chiropractic
Clean Elections
Community Colleges
Cosmetology
Dental
Economic Security
Economic Security-CPS
Education
Environ. Quality
Funeral
Gaming
Health Services
Insurance
Land
Liquor
Lottery
Maricopa Cty. Housing
Medical Examiners
Naturopathic
Nursing
Nursing Care Admin
Osteopathic
Parks
7006
248
20 3937
88131
38
15
181
0500
1000
176
00
1025
25101
22
3
58
0200
Peace Ofc. Standards
Pest Control
Physical Therapy
Podiatry
Psychologist Examiners
Public Safety - CW
Public Safety - Trans
Public Safety - Adult CC
Pvt. Post. Ed.
Racing
Radiation Regulatory
Registrar of Contr.
Real Estate
Revenue
School - Deaf & Blind
Secretary of State
Technical Registration
Water Qual. App. Bd.
Water Resources
Weights and Measures
22
00
57
1
43
02
58
20
4
19
02200100
4
13
000470
0
8
0
397
22
12
01
4
0
4
23
41
12
0
171
3
85
05
176
89
9
55
0470
30
200
9
21
0009
13
0
0
18
0
1233
79
52
0160
14
80
or Board who will render the Final Order. In effect,
while denying the motion, the Administrative Law
Judge may nevertheless ultimately recommend that
the Agency head dismiss the matter.
In conclusion, a party has the right to petition the
Administrative Law Judge by motion to obtain a ruling
on the request and to be provided a brief statement of
the reasons for the granting or denial of a motion
recognized appropriate in the administrative forum.
The overriding considerations of the Administrative
Law Judge in rendering a ruling are those of fairness
to the parties and expedition and efficiency in the
process. If a filing party has observed the rules and
has set forth a good faith, arguably sound legal
position, the party will likely receive a ruling that is
satisfactory to all under the circumstances of the
case.
Questions:
1. Attentiveness of ALJ
2. Effectiveness in explaining the hearing process
3. ALJ’s use of clear and neutral language
4. Impartiality
5. Effectiveness in dealing with the issues of the case
6. Sufficient space
7. Freedom from distractions
8. Questions responded to promptly and completely
9. Treated courteously
Evaluations of OAH Services
Note: The four major groups of those who responded are:
represented private party; unrepresented private party; counsel
for a private party; and counsel for the agency. The evaluations
are filled out immediately after the hearing and the evaluations
are not disclosed to the ALJ involved.
Office of Administrative Hearings
1400 West Washington, Suite 101
Phoenix, Arizona 85007
This publication is available in alternative formats.
The OAH is an equal opportunity employer.
All Responses 3rd Quarter
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300
400
500
600
700
Question 1
Question 2
Question 3
Question 4
Question 5
Question 6
Question 7
Question 8
Question 9
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Good
Average
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Unrepresented Responses 3rd Quarter
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Question 1
Question 2
Question 3
Question 4
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Question 6
Question 7
Question 8
Question 9
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Poor
Official Newsletter of the Arizona Office of Administrative Hearings
The
OAH Vol. 24
July 2002
The Office of Administrative Hearings (OAH) began operations on January 1,
1996. Administrative Hearings previously provided by regulatory agencies
(except those specifically exempted) are now transferred to the OAH for inde-pendent
proceedings. Our statutory mandate is to “ensure that the public
receives fair and independent administrative hearings.”
The process of unifying the administrative hearings function in OAH-style agen-cies
began in 1945 with California. The current states or cities having adopted
the model, with year of inception are: Arizona (1996), California (1961), Colorado
(1976), Florida (1974), Georgia (1995), Chicago (1997), Iowa (1986), Kansas (1998),
Louisiana (1996), Maine (1992), Maryland (1990), Massachusetts (1974), Michigan
(1996), Minnesota (1976), Missouri (1965), New Jersey (1979), New York City
(1979), North Carolina (1986), North Dakota (1991), Oregon (1999), South Carolina
(1994), South Dakota (1994), Tennessee (1975), Texas (1991), Washington D.C.
(1999); Washington (1981), Wisconsin (1978) and Wyoming (1987).
Mission Statement:
We will contribute to the quality of life in the State of Arizona by fairly and impartially hearing the
contested matters of our fellow citizens arising out of state regulation.
www.azoah.com
Jane Dee Hull
Governor
Cliff J. Vanell
Director
Director’s note: OAH is committed to fairness and making hearings
accessible to all. This article is part of a series of informational articles to
educate the public and parties who appear before us about the hearing
process and how to better present their cases. The following article may be
found at OAH’s website at www.azoah.com along with all previous articles
published in the OAH Newsletter.
The Administrative Law Judge begins a hearing by (1)
reading the caption of the case; (2) stating the nature and scope
of the hearing; and (3) identifying the parties, counsel and
witnesses for the record. See Arizona Administrative Code
(“A.A.C.”) R2-19-116(B). The parties should address the Adminis-trative
Law Judge as “Your Honor” or “Judge” and treat the
Administrative Law Judge with courtesy, respect and deference.
The parties may present opening statements. An
opening statement is voluntary. Generally, the party with the
burden of proof makes the initial opening statement. In most
cases, it is the Complainant or the Appellant who has the burden
of proof. All other parties may make an opening statement in a
sequence determined by the Administrative Law Judge. See
A.A.C. R2-19-116(D).
At the conclusion of the opening statements, the party
with the burden of proof shall initiate the presentation of evidence,
unless the parties agree otherwise. However, the Administrative
Law Judge may require another party to initiate the presentation of
evidence. See A.A.C. R2-19-116(E).
Order of Presentation, Manner of
Presentation and Conduct During
Proceedings
Casey J. Newcomb, Administrative Law Judge
“Oh the Burden We Bear!”
Gregory L. Hanchett, Administrative Law Judge*
“Presentation”
continued page 2
Lawyers frequently banter about the term “burden of
proof” as though it needs no explanation and is well known to
even a lay person. But what does it mean for a litigant to “bear
the burden of proof?” Which party to a case has the burden?
The failure to fully understand what it means to “bear the
burden of proof” can have dire consequences for a litigant. It
can mean losing the case. The purpose of this short missive
is to shed light on the burden of proof and which party bears
that burden.
When a litigant is saddled with the burden of proof,
that litigant really has two burdens. The first is the “burden of
going forward,” also known as the “burden of producing
evidence.” The second is called the “burden of persuasion.”
The burden of going forward is just what the name implies:
The party who has this burden is required to present evidence
to prove his or her claim before the opposing party has any
requirement to present evidence. The runner who never leaves
the starting line is akin to the litigant who fails to meet the
burden of going forward. Like the runner who never leaves the
blocks, the litigant who fails in the burden of going forward can
never hope to win his case because he is never “in the race.”
The burden of persuasion, on the other hand, entails
more than the burden of putting on some evidence. The
burden of persuasion requires a party to persuade the decision
maker that the party is entitled to the relief or benefits sought.
It is possible for a party to meet the burden of production, yet
“Burden”
continued page 2
* Formerly with the OAH, now an ALJ in Montana
page 2
*.78% of Administrative Law Judge decisions certified as final by the OAH
due to agency inaction or rendered moot by settlement.
** Cases which were vacated are not included.
“Presentation”
continued from page 1
4th Quarter Statistics At A Glance
Acceptance Rate:
ALJ findings of fact and conclusions of law were accepted in
97.64% of all Administrative Law Judge decisions acted upon by
the agencies.* ALJ decisions, including orders, were accepted
without modification in 94.16% of all Administrative Law Judge
decisions acted upon by the agencies. 78.37% of all agency
modification was of the order only (i.e. penalty assessed).
Appeals to Superior Court:
There were 29 appeals filed in Superior Court.
Rehearings:
The rehearing rate was .45%, defined as rehearings scheduled
(5) over hearings concluded (1101).
Completion Rate:
The completion rate was 112.91%, defined as cases completed**
(1933) over new cases filed (1712).
Continuance:
The average length of a first time continuance based on a sample
of cases (first hearing setting and first continuance both occurred
in the 4th quarter) was 48.35 days. The frequency of continuance,
defined as the number of continuances granted (235) over the
total number of cases first scheduled (1888), expressed as a
percent, was 12.45%. The ratio of first settings (2043) to
continued settings on the calendar (1385) was 1 to 0.678
Dispositions:
Hearings conducted: 56.96%; vacated prior to hearing: 39.06%;
hearings withdrawn by the agency: 3.98%.
Contrary Recommendations and Agency Response: Administra-tive
Law Judge decisions were contrary to the original agency
action in 26.97% of cases where the agency took a position.
Agency acceptance of such contrary Administrative Law Judge
decisions was 86.78%.
A party initiates the presentation of
evidence by testifying on his/her own behalf
or by the direct examination (i.e., question-ing)
of a witness. An opposing party may
cross-examine or ask questions of any
witness. The parties shall conduct the direct
and cross-examination of witnesses in the
order and manner determined by the
Administrative Law Judge to expedite and
ensure a fair hearing. The Administrative
Law Judge shall make rulings necessary to
prevent argumentative, repetitive or irrel-evant
questioning. See A.A.C. R2-19-
116(F).
A party should remember the
following tips when questioning a witness
during direct and cross-examination:
a. A party must ask relevant and
informative questions;
b. A party must ask questions that
will assist the Administrative Law
Judge in making an informed
decision;
c. A party cannot argue with a
witness or make statements or
comments in response to a
witness’ answer;
d. A party cannot ask prejudicial
questions;
e. A party cannot ask questions
that are designed solely to harass
a witness;
f. A party cannot repeatedly ask a
witness the same question;
g. A party must allow a witness a
reasonable amount of time to
answer a question;
h. A party cannot interrupt a
witness during the witness’
answer; and
i. A party should refrain from asking
multiple or compound questions
within one question.
Each party must treat all other
parties and witnesses with
courtesy, respect and dignity. The
Administrative Law Judge will not
tolerate animosity, angry outbursts
or threats of hostility directed
towards any party or witness. A
disruptive person may be removed from the
hearing room and the hearing will proceed in
that person’s absence. See A.A.C. R2-19-
120.
After the parties have concluded
the presentations of their evidence, the
parties may make a closing argument in a
sequence determined by the Administrative
Law Judge. See A.A.C. R2-19-116(G). A
closing argument is voluntary. It allows the
parties to summarize the evidence pre-sented
during the hearing and to argue their
positions based on the evidence presented
during the hearing. The Administrative Law
Judge may allow the parties to supplement
their closing arguments with written
memoranda. See A.A.C. R2-19-116(G).
However, the parties cannot present new
evidence during the closing argument or via
the written memoranda. If that occurs, the
Administrative Law Judge may reopen the
record to include the new evidence.
However, in most instances, the Administra-tive
Law Judge will not reopen the record
and will ignore the new evidence.
Unless otherwise provided by the
Administrative Law Judge, a hearing is
concluded upon the submission of all
evidence, the presentation of all closing
arguments, or the submission of all post
hearing written memoranda, whichever
occurs last. See A.A.C. R2-19-116(H). The
parties are encouraged to complete an
evaluation of the hearing process at the
conclusion of the hearing.
“Burden”
continued from page 1
still lose the case because the party failed to
meet the burden of persuasion. Returning to
the runner analogy, the litigant who fails to
meet his or her burden of persuasion is like
the runner who loses the race because he
has not trained sufficiently to run faster than
the other runners. While he is obviously
ahead of the runner who never left the
starting block, he nevertheless fails to reach
his goal of winning the race.
In order to meet the burden of
persuasion, the litigant bearing that burden
must, in most cases, prove his or her case
by a “preponderance of the evidence.” This
standard of proof basically requires the
litigant to demonstrate to the decision maker
that the existence of the fact in question is
more likely than not.
Which party to an administrative
hearing bears the burden of proof? As a
general rule, where a hearing involves the
denial of an application for a license or the
denial of a benefit that is sought, the burden
is on the person who applied for the license
or benefit. Where the proceeding involves
disciplinary action against a license, the
burden is on the agency seeking such
action.
As a practical matter, how does a
party meet the burden of proof? First,
appear at the hearing and be ready to
proceed with evidence. Some litigants make
the mistake of believing that an appeal can
be won by simply filing the notice of appeal
or perhaps sending a letter without appear-ing
for the hearing. When a party bears the
burden of going forward and persuasion, his
or her failure to appear for the hearing
results in an obvious failure to meet either
burden and ensures that the party will lose.
Second, be prepared. To meet the
burden of production, a party who bears that
1712 Cases Filed April 1, 2002 - June 30, 2002
*Note: Appealable Agency Actions are agency actions taken before an opportunity for a hearing. A typical
example would be the denial of a license. A party is entitled to a hearing before the OAH before the action
becomes final. Contested Cases involve actions yet to be determined by an agency. An example would be
proposed discipline on a professional license with the possibility of suspension or revocation. Parties are entitled
to a hearing before the OAH prior to the agency acting.
page 3
4th Q FY 2002 4th Q FY 2002 4th Q FY 2002
Accountancy
Acupuncture Board
Administration
Admin. Parking
Agriculture
Ag. Emply. Rel. Bd.
AHCCCS
Alternative Fuel
Appraisal
AZ Bd. Occup’l Therapy
Attorney General
Arizona Works
Banking
Behavioral Health Ex.
Building/Fire Safety
Charter Schools
Chiropractic
Clean Elections
Community Colleges
Cosmetology
Dental
Economic Security
Economic Security-CPS
Education
Environ. Quality
Funeral
Gaming
Health Services
Insurance
Land
Liquor
Lottery
Maricopa Cty. Housing
Medical Examiners
Naturopathic
Nursing
Nursing Care Admin
Occupation Therapy
Osteopathic
Parks
27
0
10
327
20
3404
10
13
071
52
15
238
0900
52
20
04
79
00
779
25040 14
0
57
0400
11
Peace Ofc. Standards
Pest Control
Physical Therapy
Podiatry
Psychologist Examiners
Public Safety - CW
Public Safety - Trans
Public Safety - Adult CC
Pvt. Post. Ed.
Racing
Radiation Regulatory
Registrar of Contractors
Real Estate
Revenue
School - Deaf & Blind
Secretary of State
Technical Registration
Water Qual. App. Bd.
Water Resources
Weights and Measures
14
0
69
0
22
00
62
24
5
13
012061000
34000200
0
5
0
410
11
17
12
0
0
4
55
26
0
240
3
107
05
238
113
14
68
0590
36
3100
12
24
000
11
13
0
0
23
0
1645
90
69
1360
18
135
Average Time Between Selected Events - Appealable Agency Actions v.
Contested Cases*, April 1 - June 30, 2002
3.50
10.74 10.02
44.18
8.00
2.15
12.16
56.20
0.00
10.00
20.00
30.00
40.00
50.00
60.00
Request for Hearing to
Scheduling
Scheduling to First
Hearing Date
Conclusion of Hearing to
ALJ Decision
ALJ Decision to Agency
Action
Days
AAA
CC
Agency Response to Administrative Law Judge Decisions April 1 - June 30, 2002
1676
17
62 25 1 13
0
200
400
600
800
1000
1200
1400
1600
1800
Agency accepts without
modification
Agency amends findings of
facts/conclusions of law only
Agency amends order only Agency rejects the
Administrative Law Judge
decision
Administrative Law Judge
decision Moot Due to
Settlement
Administrative Law Judge
Decision Certified as Final
Upon Agency Inaction
cases
Agency rejects the Administrative Law
Judge decision
1.39%
Administrative Law Judge decision Moot
Due to Settlement
0.06%
Agency amends order only
3.46%
Agency amends findings of
facts/conclusions of law only
0.95%
Administrative Law Judge Decision
Certified as Final Upon Agency Inaction
0.72%
Agency accepts without modification
93.42%
burden must be prepared to go forward with his or
her evidence at the time of the hearing. It does no
good to tell the decision maker that you have a
document that you wish to have placed in evidence
but that you forgot to bring it with you. Make sure
that every document that you wish to have admitted
into evidence is with you and available at the time of
the hearing. Remember that A.A.C. R2-19-115
requires you to provide a copy to other parties when
you present it at the hearing, if not done so before-hand.
Likewise, have all witnesses available and
ready to testify.
Like the runner who trains, the litigant who
understands the burden of proof puts himself or
herself in the best position to reach the goal of
winning.
Questions:
1. Attentiveness of ALJ
2. Effectiveness in explaining the hearing process
3. ALJ’s use of clear and neutral language
4. Impartiality
5. Effectiveness in dealing with the issues of the case
6. Sufficient space
7. Freedom from distractions
8. Questions responded to promptly and completely
9. Treated courteously
Evaluations of OAH Services
Note: The four major groups of those who responded are: repre-sented
private party; unrepresented private party; counsel for a
private party; and counsel for the agency. The evaluations are
filled out immediately after the hearing and the evaluations are not
disclosed to the ALJ involved.
Office of Administrative Hearings
1400 West Washington, Suite 101
Phoenix, Arizona 85007
This publication is available in alternative formats.
The OAH is an equal opportunity employer.
Unrepresented Responses 4th
Quarter
0
50
100
150
200
250
300
350
400
Question 1
Question 2
Question 3
Question 4
Question 5
Question 6
Question 7
Question 8
Question 9
Excellent
Good
Average
Poor
All Responses 4th Quarter
0
100
200
300
400
500
600
700
800
Question 1
Question 2
Question 3
Question 4
Question 5
Question 6
Question 7
Question 8
Question 9
Excellent
Good
Average
Poor
Exhibit C:
Agenda National Conference of Central Panel Directors
Wednesday Dec. 5th
6:00 - 8:00 Reception
Thursday Dec. 6th
9:00 - 9:10 Greeting
9:10 - 9:45 Introducing the Cyber Conference Cliff J. Vanell
10:00 - 10:45 Leadership Conference Overview John Hardwicke
11:00 - 11:45 Ethics Rules for ALJ’s Art Wang
12:00 - 1:00 LUNCH
1:15 - 2:00 ALJ Selection and Salaries Paul Klein
2:15 - 3:00 ALJ Training Thomas Ewing
3:15 - 4:00 Final Decision-Making Cliff J. Vanell
v. Recommended Decisions Julian Mann
5:00 - 10:00 Dinner - Western style
Friday Dec. 7th
9:00 - 9:45 Status of States Without Central Panels: Ed Rodgers
The establishment of Sister State Initiatives
10:00 - 10:45 “If I’d Only Known…”: Hard-Earned David Schwarz
Lessons From the Front
11:00 - 11:45 A Comparison of Rules Mike Zimmer
12:00 - 1:00 LUNCH
1:15 - 1:45 Arizona OAH Technology and Cliff J. Vanell
Organization
2:00 - 2:45 New Developments Chris Connolly
3:00 - 3:45 New Developments (cont.) Chris Connolly
Saturday Dec. 8th
9:00 - 9:45 Breakfast
10:00 - 10:45 Planning Meeting