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CHAPTER 3

AGENCY PERSONNEL MANAGEMENT SYSTEMS

ARE NOT PARTICULARLY EFFECTIVE

Although Administrative Law Judges' decisions impact on the national ecomony and the claims for administrative justice from thousands of citizens, little is being done to monitor ALJ performance. ALJs are agency employees and, one would expect subject to agency management control--which in the case of ALJS, is exercised by a chief ALJ designated by the agency head. However, the Administrative Procedure Act specifically precluded agency evaluation of ALJ performance and omitted assigning this responsibility to any other organization.

The above omission has, in effect, prevented agencies from establishing effective ALJ personnel management systems. The lack of performance evaluations, including development of objective standards, 1/ has adversely affected agencies in (1) ascertaining ALJ needs, (2) providing the Civil Service Commission information regarding its ALJ recruiting and certifying efforts, (3) establishing ALJ training and development programs, and (4) identifying those ALJS whose performance might warrant the initiation of adverse action proceedings. Moreover, the situation sheds some light on agencies' proclivity to extensively review ALJ decisions. Although not a particularly efficient or economical alternative to an effective personnel management system, such review nonetheless appears to be the sole feasible vehicle for agencies to assure the quality of ALJ decisions.

PERSONNEL MANAGEMENT AND THE ALJ

Among the more significant personnel management areas applicable to most Federal employees are:

--Planning for personnel requirements.

--Recruiting and selections.

--Making economical and effective use of staff.

1/The work results or accomplishments expected in terms of objective units which are the expressed measures of the quality, quantity, timing, and level of achievement expected by management of an individual's work results.

--Evaluating employee performance.

--Developing and motivating employees.

--Separating unsatisfactory employees.

--Establishing effective and appropriate management
reviews, reports, and feedback to ascertain the
effectiveness of the personnel management system.

While each of the above is important, performance evaluation-including development of work standards--is critical. Without such evaluation it is extremely difficult to effectively accomplish any of the remaining items.

APA, section 11, however, contains provisions which set ALJS apart from other Federal employees. The Congress intended to make ALJS "a special class of semi-independent subordinate hearing officers" by vesting control over their compensation, promotion, and tenure in CSC to a much greater extent than other Federal employees. It was hoped that this would insulate ALJS from agency pressure and prevent agencies from unduly influencing their decisions. Section 11 of APA also excludes ALJS from agency ratings by exempting them from the provisions of the Classification Act of 1923, which provide for in-grade promotions on the basis of employee efficiency ratings made by the employing agency. 1/ APA, however, did not provide an alternative method of evaluating ALJs' perform

ance.

The ALJS' semiindependent status was reinforced by the Supreme Court in Ramspeck v. Federal Trial Examiners Conference (345 U.S. 128). The Court ruled that ALJS were not totally independent and held that the objective of the APA was merely to prevent agency abuse of ALJs' integrity. CSC has also held that the APA did not intend to establish ALJs as separate and autonomous agencies within agencies. The Senate Committee on Governmental Affairs also concluded that ALJS are not completely independent of CSC or the regulatory agencies in which they are housed.

1/Classification Act of 1923 has been superseded by the Classification Act of 1949 (act of October 28, 1949, 63 Stat. 954). The provisions of the act, as amended, which correspond to section 7(b) (2) and (3) and section 9 of the 1923 act, appear in 5 U.S.C. 1121-1123, 2001-2007.

Despite the foregoing, many ALJS continue to contest the view that they are subject to any degree of agency personnel management control. Generally, they feel that they should have the same freedom as Federal judges. 1/ In this regard, the actual degree of ALJ independence was addressed by the Chairman of the Committee on Status and Compensation of the Federal Administrative Law Judge Conference in June 1977 testimony before the Subcommittee on Civil Service, House Committee on Post Office and Civil Service. Appearing for the 500 member conference, in what perhaps is an overstatement of ALJS' legal status, he stated that ALJS do not have superiors and thus are not regulated or supervised; that they cannot be fired for incompetence; and that they are totally independent from their agency and for this reason ALJS "don't have to curry their (agency's) favor because they (the agency) can't fire us." The strong stand taken by ALJS, relative to their being totally independent, has been a major contributor to agencies' reluctance to institute effective ALJ personnel management systems.

The role of the Chief Administrative Law Judge

Most agencies have designated a chief to supervise the ALJS' Work. One of the chief's major responsibilities is to ensure agency hearings are conducted efficiently, expeditiously, and in accordance with professional standards. His/her specific duties include

--maintaining standards of performance;

--assigning work;

--administering a budget and approving expenditures;

and

--providing leadership, guidance, training, and
direction.

A 1964 Attorney General's opinion 2/ cited the above mentioned duties and called the chief one of the agency's principal administrative officers. The Senate Committee on Governmental Affairs recommended 3/ establishing performance

1/Page 3 points out a significant distinction between ALJS and Federal judges.

2/42 OP Att'y Gen 19 (1964).

3/Study of Federal Regulation, Vol. IV--Delay in the Regulatory Process, July 1977.

standards and noted that the chief's most important duty is overseeing ALJ's productivity and quality of work. However, even when a chief attempts to oversee ALJ performance, he/she is frustrated by a lack of (1) standards detailing what is expected of ALJs and (2) authority to evaluate ALJ performance. As a result, he/she has little basis for counseling, training, or initiating adverse action proceedings.

Managerial authority exercised by chiefs

The chiefs at the four agencies we reviewed--which employ about 25 percent of all ALJS--varied significantly in the degree of control they exercise over ALJ productivity and work quality. The chiefs at ICC, Labor, NLRB, and OSHRC, while having access to productivity data, have not established objective performance standards in terms of either quantity or quality of work.

Without such standards, productivity data is of limited value. For example, although ICC has developed information on individual ALJ time spent on cases and the number of cases adjudicated, it is not used to evaluate the ALJ. The chief believes that formal evaluation of ALJ performance would violate the APA and infringe upon their independence. He believes the most effective procedure to improve performance is to provide "dignified encouragement" to those ALJS who are not as productive or effective as he would like. He also believes productivity can be increased most effectively by selecting highly motivated candidates, providing a work environment where ALJS are treated as professionals, and encouraging under-achievers, who are eligible, to retire.

The chief at OSHRC maintained information on individual ALJ productivity. He believed that ALJ output can and should be measured. Accordingly, he informed each ALJ in writing of officewide productivity and how their performance compared with the office average. In these letters, the chief complimented those ALJs performing to his satisfaction and encouraged better performance by the remainder. The majority of the ALJS did not consider this process an infringement on their independence. For those who did not object, the chief also reviewed their decisions and critiqued their writing style. However, he did not comment on the substance of their decisions because he believed this would constitute interference with the ALJ decisionmaking process.

The chief at NLRB also attempts to assess ALJ productivity. He calculates an office average based on the number of cases the ALJS have decided and every 3 months he

advises the ALJS of their productivity and how it compares to their peers and the office average. He does not, however, read the ALJS' decisions to evaluate their writing style.

The chief at Labor manages differently. He recently reserved a room specifically for a series of charts which are intended to maintain control over case assignments and ALJ productivity. The chief expects the ALJS to visit the chartroom to ascertain how their productivity compares with their peers. The chief also stated he has occasionally discussed the writing style of some decisions with certain ALJS.

While productivity information is available at all four agencies, only OSHRC used it to evaluate individual ALJS. When the chief was not satisfied with the performance of some ALJS, he notified them that he planned to take further action if they did not improve. However, he stated that the exercise had not been particularly successful. The productivity of some ALJS had not reached acceptable levels and he was reluctant to take further action because an ALJ had never been removed for poor performance.

In contrast, the Bureau of Hearings and Appeals, Social Security Administration, has established production goals and monitors and evaluates an ALJ's work. The chief ALJ said that while management cannot interfere with the decisional process, it has the responsibility to manage the ALJ's work to achieve agency goals. While we have not looked at the BHA system in detail, we were advised that each judge should be able to complete 26 cases per month and maintain the quality BHA expects.

The Center for Administrative Justice points out in its BHA study 1/ that the judges have

"complained bitterly about the statistical
information compiled concerning ALJ production
and reversal rates. In all these areas some
ALJS characterized BHA's actions or powers as
attempts to undermine ALJ independence."

The Center, however, makes the point that if BHA does not have information on how and how fast judges decide cases, the agency is denied the capacity to evaluate the performance of its employees. The Center concludes that

1/Final Report Study of the Social Security Administration Hearing System, October 1977, Center for Administrative Justice.

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