OAH, The

              10. “HEAR” TODAY, GONE TOMORROW!
Once the hearing time and date has passed, the
hearing cannot be reset by just a telephone call, so do not
call the Office of Administrative Hearings (OAH) and ask for a
hearing. Read the Notice of Hearing for the date, place, and
time of the scheduled hearing. In most cases, the hearing
will be held in Phoenix, Arizona. The OAH also maintains a
Tucson office. Periodically , there are cases (primarily Child
Protective Services and Registrar of Contractors) that are
heard in other venues (Flagstaff, Kingman, Lake Havasu,
Prescott, Show Low, Sierra Vista, and Yuma).
9. “HEY ROCKY, WATCH ME PULL A RABBIT OUT OF MY
HAT!”
Do not come to the hearing and apologize that you
do not have any of the important documents or evidence that
you wish the Administrative Law Judge to consider. This is
the parties’ day to be heard, so come to the hearing prepared.
If a party comes to the hearing unprepared and informs the
TOP TEN THINGS NOT TO DO AT AN
ADMINISTRATIVE HEARING
Official Newsletter of the Arizona Office of Administrative Hearings
The
OAH Vol. 17
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 respondents are: Represented
private party; unrepresented private party; counsel for a private
party; and counsel for the agency. The respondents fill out the
evaluations immediately after the hearing and the evaluations are
not disclosed to the ALJ involved.
October 2000
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 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 agencies
began in 1961 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), Missouri (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.
Top Ten
(continued page 2)
Office of Administrative Hearings
1400 West Washington, Suite 101
Phoenix, Arizona 85007
www.azoah.com
Lewis Kowal, Administrative Law Judge
This publication is available in alternative formats.
The OAH is an equal opportunity employer.
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 the third in what we at
OAH plan to be 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 current article is derived
from David Letterman’s Top Ten List and, although there is some
humor injected, the topics are serious and intended to provide
useful information. This and previous articles are available on
OAH’s website at www. azoah.com
All Responses 1st 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
Administrative Law Judge that documents, photographs, and
other items exist but were not brought to the hearing, it is as if
such items do not exist. Judges need to review evidence.
Representations that such evidence exists, without bringing it to
the hearing, are not going to be helpful to a party’s case. When
a party brings exhibits to the hearing, copies should be brought
for the Judge and for the other party.
8. “MY DOG ATE MY WITNESS.”
Do not show up at the hearing and inform the Adminis-trative
Law Judge that ten witnesses could have been brought
to the hearing “who would testify that … .” If witnesses would
be helpful to a party’s case, a party should ensure their appear-ance
at the hearing so the Judge can observe them and listen
to their testimony. Parties may subpoena witnesses in accor-dance
with OAH Rule 2-19-113. If a witness cannot physically
be present, a party may file a request to have a witness appear
telephonically. If you wish to proceed in that manner, see OAH
Rule 2-19-114.
7. “TABLE FOR TWO?”
Do not bring any snacks, chewing gum, chewing
tobacco, food, or beverages into the hearing room. Pitchers
containing water are made available in the hearing room for
use by the parties, witnesses, and observers. All food items,
other than bottled water, are to remain outside the hearing room
Unrepresented Responses 1st Quarter
0
50
100
150
200
250
Question 1
Question 2
Question 3
Question 4
Question 5
Question 6
Question 7
Question 8
Question 9
Excellent
Good
Average
Poor
Agency Response to Recommended Decisions July 1 - September 30, 2000
1234
13
61 34 11
0
200
400
600
800
1000
1200
1400
Agency accepts
w ithout modif ication
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
Agency accepts w ithout modification
90%
Agency amends findings of
facts/conclus ions of law only
1%
Agency rejects the recommended
decision
3%
ALJ decision certi fied as final upon
agency inaction
Agency amends recommended order 1%
only
5%
2,378 Cases Filed July 1, 2000 - September 30, 2000
*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 2 page 3
1st Q FY 2001 1st Q FY 2001 1st Q FY 2001
1st Quarter Statistics At A Glance
Acceptance Rate:
ALJ findings of fact and conclusions of law were accepted in
96.5% of all recommended decisions acted upon by the
agencies.* ALJ decisions, including recommended orders,
were accepted without modification in 91.95% of all recom-mended
decisions acted upon by the agencies. 82.4% of all
agency modification was of the order only (i.e. penalty
assessed).
Appeals to Superior Court:
The appeal rate was 3.358%, defined as appeals taken (53)
over hearings concluded (1578).
Rehearings:
The rehearing rate was .697%, defined as rehearings sched-uled
(11) over hearings concluded (1578).
Completion Rate:
The completion rate was 66.36%, defined as cases completed
(1578) over new cases filed (2378).
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 42 days. The frequency
of continuance, defined as the number of continuances granted
(207) over the total number of cases first scheduled (1557),
expressed as a percent, was 13.29%. The ratio of first
settings (1557) to continued settings on the calendar (235) was
1 to 0.15.
Dispositions:
Hearings conducted: 66%; vacated prior to hearing: 32%;
hearings withdrawn by agency: 2%.
Contrary Recommendations and Agency Response:
25.8% of recommendations were contrary to the original
agency action where agency took a position. Agency
acceptance of contrary recommendations was 84.1%.
Top Ten
continued from page 1
* 1% of ALJ recommended decisions were certified as final by the OAH due to agency inaction.
Accountancy
ADA
Administration
Admin. Parking
Agriculture
Ag. Emply. Rel. Bd.
AHCCCS
Appraisal
AZ Commission on the Arts
Attorney General
Arizona Works
Banking
Behavioral Health Ex.
Building/Fire Safety
Charter Schools
Chiropractic
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
Osteopathic
Parks
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
1
70
0
24
0
2
52
24
3
29
1
0
1
0
400
4
0
15
04
61
00
1637
000061
36
04042
15
04
61
00
1637
000061
36
04042
1
70
0
24
0
2
52
24
3
29
101
0
40040
0
011
4
30
4
0
316
22
25
015047
0
0
1
1
4
3
0
4
0
316
22
25
0150
4
7
Average Time Between Selected Events - Appealable Agency Actions
v. Contested Cases*, July 1 - September 30, 2000
7.77
1.32
20.15
43
5.52
1
10.4
52.55
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
at all times. During the hearing, recesses
occur, at which time snacks or drinks may
be obtained. A one hour lunch recess is
generally taken but can be extended, at
the Judge’s discretion. Listen to the
Judge as to the time when the hearing will
resume. If the Judge informs the parties
that there will be a fifteen minute recess,
that means be back in the hearing room
within fifteen minutes. Do not expect the
Judge to wait longer than the fifteen
minutes to reconvene the hearing.
6. “EXTRA, EXTRA, READ ALL ABOUT
IT!”
Each Judge has discretion as to
what to permit at each hearing. Generally,
however, prepared testimony that is
written by a party or
witness will not be
allowed to be read
into the record
during the hearing.
An Administrative
Law Judge cannot
discern the truthful-ness
of a witness if
a party is reading a
statement rather
than testifying from
the party’s own
knowledge. If that
were to occur, the
person might as
well just submit the
document and have
the Judge read it
without taking up
valuable hearing
time. Documents
can be offered as
exhibits to be
admitted into the
evidentiary record for
consideration by the
Judge. Also, when
appropriate, docu-ments
can be used
to refresh a person’s
recollection as to
specific details.
5. “CURB YOUR
ELEPHANT.”
Copies of
original items or documents may be
brought to the hearing room to be used as
evidence. Once a hearing is concluded
and there is a final administrative deci-sion,
the matter is subject to appeal. The
courts will not accept large items to be
part of the record on appeal. In order to
avoid a problem with submission of the
record to a court, such large objects will
not be admitted into evidence at a hearing
before the OAH. Generally, only items that
can fit within an 8 ½” x 11” folder will be
admitted into evidence. Do not expect that
large items such as blueprints, doors,
bricks, etc. will be admitted into the
evidentiary record. Although large items
will not be admitted, such items may be
utilized at the hearing as demonstrative
evidence. That means that they can be
viewed by the parties, witnesses, and the
Judge, and testimony, may be presented
concerning such items. However, parties
should expect to leave the hearing room
with any large items that are brought into
the hearing room.
4. “AND NOW FOR SOMETHING
COMPLETELY DIFFERENT...”
Read the OAH pamphlet that
accompanied the Notice of Hearing
because it contains important information
as to the procedures followed by the OAH.
Additionally, parties and members of the
public are encouraged to visit the OAH’s
website at www.azoah.com to learn more
about the OAH and the Administrative Law
Judge who will be presiding over a
particular matter. Review the procedures
set forth in the OAH’s administrative rules.
The rules provide information as to when
continuance requests should be filed and
what information the Judge may consider.
Also, the parties may wish to attend
another OAH hearing to observe the
Administrative Law Judge or become
familiar with the hearing process.
3. “HEY GOOD BUDDY!”
Be respectful of the administra-tive
process, and address the Administra-tive
Law Judge as “Your Honor” , “Judge”,
or “Mr. or Ms….” but do not address the
Judge by his or her first name or as a
“hearing officer”.
2. “WELL...ISN’T THAT SPECIAL?”
Do not come to the hearing
expecting to get loud or overly emotional.
The hearing is a time to have the parties
air their differences before a neutral third
party, the Administrative Law Judge. It is
inappropriate to use profanity, yell, or
become disruptive. Acting in that manner
does not accomplish anything except the
possibility of being admonished for not
behaving appropriately. A person who is
unruly or disruptive to the hearing process
may be removed from the hearing room if
he or she does not maintain proper
decorum. See OAH Rule 2-19-120. If a
party or witness is removed from the
hearing room because of unruly behavior,
the hearing will proceed in that person’s
absence. All parties disagree to some
extent on the facts and/or the applicable
law. If they agreed, then there would be
no need for the hearing. Parties can air
their differing views through the calm
presentation of witnesses’ testimony and
the submission of items into evidence.
Getting loud does not sway a Judge.
Being respectful and courteous to the
Judge as well as to the other participants in the hearing
makes for a more pleasant and productive hearing.
1. “SAY GOODNIGHT, GRACIE.”
Hearings are held Monday to Friday during
normal business hours of 8:00 a.m. through 5:00 p.m.
Do not assume that the hearing will continue past 5:00
p.m. even if witnesses and parties have come from out
of town. If a hearing does not conclude at the end of the
business day, the hearing will likely be rescheduled for a
further hearing date.