Recommendations on the Appointment and Status of Federal Hearing Officers BY COMMITTEE ON HEARING OFFICERS OF THE PRESIDENT'S CONFERENCE ON ADMINISTRATIVE PROCEDURE (September 8, 1954) The Committee recommendations are, in most instances, in the alternative. Each alternative text is supported by four members of the Committee. Alternative I is sponsored by Messrs. Kinter, Doyle, Reynolds and Winings. Alternative II is sponsored by Messrs. Lester, McElvain, Meloy and Scharnikow. Reports supporting the following recommendations have been issued under separate cover. The report supporting the Alternative I recommendations was issued August 10, 1954, and supplemented by an insert dated September 8, 1954. The report supporting the Alternative II recommendations was issued September 3, 1954. Administration Recommendation No. 1 Alternative I It is recommended that the Office of Administrative Procedure, recommended by this Conference on November 23-24, 1953, be established and be expanded to include the administration of the hearing officer program and that such office be independent of any existing agency or department. a. that the Office perform the following functions relating to the hearing officer program: (1) recruiting, qualifying, and maintaining a list of currently qualified hearing officer candidates; (2) overseeing matters of compensation, tenure and re tirement; administration of removal procedures; (3) constantly guarding against any encroachment upon the independence of hearing officers or upon the integrity of the administrative process. b. that the Office of Administrative Procedure perform those additional functions heretofore recommended by the Conference: (1) carrying on continuous studies of the adequacy of the procedures by which Federal Agencies determine the rights, duties and privileges of persons; (2) initiating cooperative effort among the agencies and their respective bars to develop and adopt as far as practicable, uniform rules of practice and procedure; Editor's Note: These recommendations have not been adopted by the President's Conference on Administrative Procedure. See: ICC Practitioners' Journal, Vol. XX, May, 1953, No. 8, p. 774; Vol. XXI, Dec., 1953, No. 3, pp. 184-6. (3) collecting and publishing facts and statistics concerning the procedures of the agencies; (4) assisting agencies in the formulation and improvement of their administrative processes. c. that the Office be nonpartisan and consist of five members appointed by the President, as follows: (1) a government expert in the field of Federal administrative law; (2) a member of an independent Federal regulatory agency; (3) a law professor; (4) and (5) two nongovernment practicing lawyers. d. that the members of the Office be authorized to employ an executive director and an appropriate staff. e. that the members be empowered to call upon the services of other government agencies where appropriate and to designate panels of consultants. f. that the first board members be appointed for terms of 1, 2, 3, 4 and 5 years respectively, the term of each to be designated by the President, but that their successors be appointed for terms of 5 years. Alternative II It is recommended that the administration of the hearing examiner program be continued by the Civil Service Commission under Section 11 of the Administrative Procedure Act and that the Civil Service Commission establish a new Bureau of Hearing Examiner Administration. a. that the new bureau be charged with the responsibility for the hearing examiner program that is now divided among three bureaus of the Commission. b. that a committee of five members be placed in charge of the bureau. c. that there be brought into the administration of the hearing examiner program additional persons who have recently been engaged in the preparation and presentation of cases before administrative agencies, and that at least two of the members of the committee be lawyers who are well versed in Federal administrative adjudication and at least two of the members of the committee be officials of the Commission who have the broad gauge viewpoint of the hearing examiner program; d. that subordinate personnel be assigned to the bureau, either on a full-time basis, or by detail from other bureaus of the Commission. Recommendation No. 2 Qualifications Alternative I It is recommended that qualification standards of hearing officers be raised substantially beyond those presently in force and that such standards be fixed within the discretion of the Office of Administrative Procedure but include as a minimum: a. A law degree and membership in a bar. b. six years' continuous legal experience immediately preceding qualification. c. adequate experience as a participant in adversary proceedings before courts of record or in administrative agencies. d. sufficient experience in the field of administrative law to insure familiarity with the administrative process. Alternative II It is recommended that the present high qualification standards established by the Civil Service Commission be retained. Recruitment, Selection and Appointment Recommendation No. 3 Alternative I 1. It is recommended that the following appointment procedure be adopted: a. that the Office of Administrative Procedure recruit candidates and prepare and maintain a list of currently qualified candidates. b. that the entire list be submitted to the agencies when appointments are to be made, and that the agencies select from that list the person or persons they desire. c. that the person or persons so selected, upon approval by the Office of Administrative Procedure, be nominated by that Office for appointment by the President. d. that hearing officers be housed in the selecting agencies but that there be reasonable provision for exchange or transfer in accordance with the fluctuating requirements of the various agencies. 2. It is recommended that a career-merit system be established for hearing officers. 1. It is recommended that: Alternative II a. recruitment be continued on an open competitive basis, and concentrated on the most likely source of qualified applicants, such as lawyers with trial experience in administrative law both in and out of Government; b. a current competitive register of candidates for appointment be established biennially; c. selection for appointment to hearing examiner positions be limited to either the promotion, transfer or reinstatement of hearing examiners or appointment from the open competitive register. 2. It is recommended that the career-merit system be retained. Recommendation No. 4 Compensation 1. It is recommended that a single salary grade be established for the hearing officers in each agency. Further Alternative I 2. It is recommended that: a. the Office of Administrative Procedure in the future, as part of its continuing study of the hearing officer program, give careful consideration to the advisability of instituting a one-grade system throughout government. b. the level of compensation for hearing officers be raised to a range between $12,000 and $14,000 per year and that the Office of Administrative Procedure be given authority, after consultation with the agencies, to fix the specific salary for a particular agency within the stated range. Alternative II-Compensation and Classification 2. It is recommended that: a. compensation be prescribed in accordance with the Classification Act; b. that the classification specifications be revised (1) to bring the illustrative examples of cases up to date and to express the substantive portions of the specifications in less technical and simpler language, and (2) to delete the language that erroneously suggests that length of record is of some importance in prescribing the level of compensation of the hearing examiner. c. that the level of compensation for hearing examiners range between $8,300 (GS-13) and $11,800 (GS-15) until higher grades are available under the Classification Act. Tenure and Retirement Recommendation No. 5 It is recommended (1) that hearing officers have tenure until retirement; and that retirement age and retirement benefits be consistent with those applicable to other employees of the Executive Branch. Removal Rcommendation No. 6 1. It is recommended that removal be for cause only after hearing and upon the record thereof. Further Alternative I 2. It is recommended that a qualified person designated by the Office of Administrative Procedure conduct the removal hearing, and a three-member review board designated by the Office of Administrative Procedure, but acting independently of that Office, hear all appeals from the initial decision. Alternative II 2. It is recommended that the procedures for removal of hearing examiners as set forth in Section 11 of the Administrative Procedure Act be retained. 3. It is recommended that the agency study more closely the performance of hearing examiners and initiate removal proceedings where appropriate. Recommendation No. 7 Reduction-In-Force Alternative I It is recommended that present reduction-in-force rules be made inapplicable to hearing officers; that where an agency's hearing officer requirement is reduced, surplus hearing officers be placed under the supervision of the Office of Administrative Procedure; that such officers be available for temporary assignments; and that they be given preference by law for any permanent hearing officer positions arising in other agencies. Alternative II It is recommended that agencies avoid or minimize the application to hearing examiners, of the reductions of force provided by law (1) by utilizing hearing examiners from other agencies, under Section 11 of the Administrative Procedure Act, to meet unusual caseloads, rather than by appointing additional examiners to their staffs; and (2) by considering, in its determination of the classes of its employees to be separated in a necessary reduction in force, the loss of ability, experience, and training entailed in the separation of hearing examiners. |