State 'agency of last resort' resolves disputes


One on One is a weekly feature offering excerpts of interviews conducted by The Evening Sun with newsworthy business leaders. John Hardwicke is chief administrative law judge of the new Office of Administrative Hearings, which was formed last year to try to resolve disputes between state agencies and citizens and businesses.

Q.What are the most common disputes that businesses would have with government agencies?

A. Probably in the area of the environment and natural resources. Those would almost always involve businesses, whether it's a gasoline station with a buried tank that's leaking gasoline or oil into the subterranean strata of Maryland or whether it's an environmental pollution matter involving a little business or a big business.

Q. What types of cases are heard by the Office of Administrative Hearings?

A. The OAH has a statutory assignment to hear all agency cases in the state of Maryland except worker's compensation, [those of] the Public Service Commission, certain cases in the Executive Branch, like the Comptroller's Office, and also those agencies exempted by the governor. All other agencies' cases we hear.

Q. How many agencies would that be?

A. It's approximately 20 agencies, but within the 20 agencies, there are probably about 200 different types of cases.

Q. Can you explain how the Office of Administrative Hearings adjudicates disputes businesses may have with Maryland agencies?

A. Every agency that has a business responsibility will have cases generated for our courts, so to speak, or for our hearing forums. For example, the Department of Licensing and Regulation, which is all license-type cases, that is the cosmetologists, plumbers, electricians, home improvement, all of those cases are heard by our examiners or judges as they're called . . . In addition to the DLR we hear Department of Natural Resource cases where you're dealing with the natural resources of the state, streams and the soil and the rivers and the waters and so forth. The Department of the Environment. We hear all of those cases. All of those are direct business cases. We hear [cases from] the Human Relations Commission. That is a case where an employee may have a complaint against his or her employer. Those are direct business cases.

Q. You are then the agency of last resort within the state government?

A. That's a good way to put it. That is true. Generally, and to elaborate on that answer, the citizen has had dealings with the agency. The agency has come up with the result which the citizen finds unsatisfactory. The citizen then requests a hearing and that hearing is furnished by the Office of Administrative Hearings, and when the hearing has been held, if the citizen is not then satisfied, the citizen can always go to court.

Q. Until 1990, government agencies hired hearing officers through the agency. Why were these functions consolidated with the Office of Administrative Hearings?

A. Primarily to separate the hearing function from the agency. Now they could have set up for each agency an independent hearing officer, but then you would have had about 15 or 20 or 30 different independent hearing functions. That would not have achieved any economies. It would not have achieved the professionalism that they were looking for. When we assumed this responsibility, there were approximately 26 hearing officers in the motor vehicle administration. Those were the officers who could hear those cases. We now have over 60 judges, administrative law judges, that can hear MVA cases. Where did they come from? We trained the department of health judges, so that they could hear MVA cases, but we also trained the MVA judges so that they could hear DHMH cases. So all of these

judges are crossed-trained.

Q. Do other states have such a system?

A. There are approximately a dozen panel states out of the 50. Now out of those dozen panel states, and by panel state I mean a state that has separated the hearing function from an agency, out of those 12, most of them, eight or nine of them, only have two or three agencies that are within the responsibility of their OAH.

Q. Why is it important that you're in the executive rather than judicial branch of government?

A. For several reasons. The first reason being that we're still at the agency level. To use your expression, this is the court of last resort in the agency, and the citizen is still dealing with the executive part of the government. An appeal lies from us to the judges, to the judicial branch of the government. So it's very important that the executive furnish the citizen with a fair hearing before that citizen goes to the judge, to the courts. And obviously we do this cheaper. We can hold a hearing much less expensively than the regular judiciary. We're more informal, most of our citizens come here without a lawyer, pro se as they say in the law, and that means that our goal is to give due process without all of the expense.

Q. How much did it cost to create the Office of Administrative Hearing?

A. A million dollars for building equipment and start-up costs . . . We are basically zero based, that is to say we took the budgets from the old agencies and put those budgets together and made our budget.

Q. How long does it take for a business appealing an agency decision to have a hearing before the Office of Administrative Hearing?

A. We're required by law in many cases to receive the case, have the hearing, and get the decision out in 30 days. So typically I would say 30 days from the inception of the case to its conclusion.

Q. How many judges do you have?

A. We have, active at this moment, 68. There were 83 hearing examiners.

Q. How are the judges of the Office of Administrative Hearings chosen?

A. They were chosen on the basis of criteria which we laid down for the judges in December of 1989, and we chose them all from the hearing examiners. Almost all of our judges are members of the bar. We require that all judges hired since Feb. 1, 1990, be members of the bar.

Q. Do they have special training?

A. Well, we inherited hearing examiners who had been trained by the agency to hear one kind of case. In order to create judges who could hear many different kinds of cases, they trained each other. This was strictly a self-help operation.

Q. Are the businesses represented by lawyers during hearings or is the process more informal?

A. In almost all cases, a business in the sense that we think of business, there's an attorney involved representing the business.

Q. Is the process, nevertheless, more informal than a court of law?

A. Yes, yes. The rules of evidence are more informal. For example, we permit hearsay . . . So that you will get some idea of the informality of our hearings, we go to the prisons and hear inmate grievance cases. Now when you get into the prison setting, the prisoner who is there complaining that while he was in solitary confinement he came back and all his dress shirts were stolen. And so he's bringing his case against the jail for allowing his property to be stolen. The judge goes in behind the prison walls and here's this prisoner brought out, and he'll bring in some witnesses. The judge listens to the case, and you can be sure that there are no formal rules of evidence objecting on the grounds of immateriality and all those good things.

Q. How many hearings does the Office hold each year?

A. We actually hold probably between 40,000 and 50,000.

Q. Where do you have these hearings?

A. Here at Greenspring Station we hold most of the hearings for the greater Baltimore region. . . . But we also go out into all the counties and hold hearings. Out in the counties the hearings may be held at the state multi-service centers or the hearing may be held at a Motor Vehicle Administration office. They may be held in a District Court setting or in the county council, whatever.

Q. How many of the hearings would you guess involve businesses?

A. Well, directly, I would imagine that the number would be between 5,000 and 10,000. If you add the indirect, that is to say Motor Vehicles, employees of business, and all of that sort of thing, the number probably is upwards of 40,000 or so.

Q. What percentage of the cases would you find that you uphold the agencies' initial ruling?

A. We have never really tried to determine that, and I'm not sure that we want to because we think that we should look at each case as an individual case. There is no special presumption favoring the agency.

Q. Do you have any idea how often businesses appeal your rulings?

A. I would only say that with the advent of the OAH, the appeals are more infrequent. In other words, in the business community when we were an agency function, an appeal was almost automatic.

Q. When should a business turn to the Office of Administrative Hearing?

A. We can only hear a contested case. And therefore there is no opportunity for them to turn to us until they have a grievance with an agency. They cannot turn to us for a ruling other than in the context of a contested case.

L Q. How would you advise a business to prepare for a hearing?

A. I think that because of the informality of our hearings, the business perhaps does not have to go through the reams of statistics, interrogatories, depositions and all of the trial preparation that they think of when they think about going to court. They can come here with their informal records, with their testimony, without the complex of preparation that's required for a court case. Of course, we want them to come and tell the truth. Bring the facts, and we will put all of those facts on the record and attempt to make a decision.

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