"If the agency's responsibility to manage the The chief ALJ informs us that BHA has made some judgments concerning ALJ effectiveness. Recently BHA initiated actions with CSC to remove an ALJ because he had not been meeting the productivity standards. The chief also said that BHA is considering taking action against other judges for this reason. ALJ PRODUCTIVITY In June 1973, CSC established a committee, chaired by its Deputy General Counsel, composed of 5 ALJS and 6 chiefs to study the overall effectiveness of the ALJ program in the 22 agencies in which they were then serving. The group's final report, 1/ stated: "The best efforts of the Committee to quantify "The Subcommittee on ALJ productivity was unwilling 1/Report of the Committee on the Study of the Utilization of Administrative Law Judges--CSC, July 30, 1974. The gathering of information to determine ALJ productivity still appears to be a problem. The responses to our questionnaire indicated that only 7 of the 13 agencies, with a sufficient number of ALJS responding to allow valid analysis, had a system to monitor individual ALJ productivity. Their responses, however, regarding the systems' benefits and usefulness, varied considerably. While some indicated that the system at their agency increased productivity and improved motivation, there was not a majority view that the systems, as perceived, are clearly valuable and useful. Four of these seven agencies were included in our review and as stated previously, all four had access to productivity data but none had established objective standards against which to measure performance. Agency officials, chief ALJS, ALJS, and outside parties have all indicated that while most ALJS perform satisfactorily, others do not. Until objective standards are established and actual performance measured against such standards, no accurate determination as to the extent ALJs are performing satisfactorily can be made. Notwithstanding our inability to objectively make such a determination, we did note that the productivity of ALJS within agencies varied significantly. For example, in fiscal year 1975, 62 ALJS who were at NLRB the entire year averaged 18 case dispositions; however, when analyzed in terms of the most and least productive, 9 ALJS averaged 29 cases, 30 ALJS averaged 19 cases, and the 23 least productive ALJS averaged 12 cases. In 1976 there was an almost threefold production differential between the most and least productive ALJs. It should also be noted that during fiscal years 1972 to 1976 eight NLRB ALJs consistently performed below each year's office average. A similar analysis at OSHRC showed that in 1975, 34 ALJS averaged 62 case dispositions: 6 ALJS averaged 95 case dispositions, 15 ALJS averaged 66 cases, and the 13 least productive ALJs averaged 44 cases. Accordingly, there was more than a twofold production differential between the most and least productive ALJs during this period. In 1976 the most productive ALJS nearly doubled the output of their least productive peers. Further, from 1973 to 1976, eight OSHRC ALJs performed below the office average. The chiefs at NLRB and OSHRC were aware of the wide variations in ALJ productivity and both had spoken to some ALJS and encouraged them to do better. The chiefs also noted that while individual case complexity can differ significantly, their policy of rotating case assignments, as set out in the APA tends to equalize ALJ workload in terms of case complexity over a period of time. Although the lack of standards and evaluation precludes determining the extent of the problem, the above-noted comments of individuals involved in the process, the significant variances in productivity of ALJS handling cases of similar complexity, and the consistent low production of certain ALJs indicate that some ALJs are not performing satisfactorily. PROBLEMS ASSOCIATED WITH THE LACK OF STANDARDS AND ALJ PERFORMANCE As indicated in chapter 2, one reason agencies extensively review ALJ decisions is they have little assurance that some ALJ's decisions are reasonable and in accordance with agency policy. Without performance standards and ALJ appraisal, agencies cannot be confident that ALJS are settling disputes equitably and expeditiously and, practically speaking, have little alternative, short of review, to assure that individual decisions are reasonable and in accordance with agency policy. The lack of standards and appraisal of ALJ performance also inhibits agencies from effectively performing other major aspects of personnel management. They cannot (1) accurately determine the number of ALJs needed to accomplish their objectives, (2) provide CSC with objective assessments of ALJ performance to be used in determining CSC adequacy in recruiting and certifying ALJs, and (3) provide performance feedback to ALJS essential for their development. In addition, they have no objective basis to initiate adverse action proceedings. ALJ productivity and need assessments Despite a lack of standards to objectively measure the performance of ALJS currently on board, officials at NLRB, Labor, and OSHRC expressed a need for additional ALJs to handle increased caseloads. As previously noted there is a wide variation in the number of cases disposed of by individual ALJS at NLRB and OSHRC. At ICC we also found that cases normally handled by agency attorneys were being diverted to ALJS to increase their workload. While agencies may in fact need additional ALJs to accomplish their objectives, the aforementioned situations must be considered. Otherwise, as caseloads increase--which has been the case in recent years--agencies may seek more ALJs than necessary. Recruiting and certification CSC is responsible for recruiting and certifying individuals for ALJ positions. As discussed in the following chapter, however, CSC receives little or no objective feedback regarding the performance of those individuals subsequently selected by the agencies to occupy these important positions. As a result CSC has no assurance that it is recruiting and certifying the best possible people. Another method, suggested by various agency management officials, to obtain the best possible people as ALJS is to do away with initial absolute appointments. While these officials believe that most ALJS do a good job, some do not and the present system for removing an ALJ is cumbersome and time consuming. Rather than provide a person with a guaranteed job from the outset, these officials would like to see a trial period of up to 3 years, where the person can demonstrate through actual work his/her capabilities to do the job. The person's capabilities would then be evaluated by a panel of independent chief ALJS who would recommend that the person be given status as an ALJ or terminated. Information concerning the person's capabilities could be provided by the chief ALJ in charge at that individual's agency, agency management officials, lawyers practicing before the ALJ, claimants with cases before the ALJ, and peers. If If the chief ALJS recommends the ALJ be given status, any future personnel action would have to be initiated through the current procedures as outlined in the APA. the panel recommends termination, a Federal employee should be allowed to return to his/her previous job. If a trial or probationary period were adopted for ALJs, this practice would be similar to current practices for most Federal employees and to those being recommended in the President's reorganization plan for middle- and top-management levels. ALJ training and development The lack of standards and appraisals also inhibits establishing effective ALJ training and development programs. Without standards, agencies cannot objectively determine specific areas requiring improvement or provide appropriate feedback including training opportunities to correct deficiencies. In this regard, about 75 percent of the ALJS responding to our questionnaire indicated that certain types of training would be beneficial in doing their jobs more expeditiously and effectively. Among the training areas hearing procedures, most frequently mentioned were: administrative law and regulations, agency policy and procedure, and decision writing. Adverse actions The Congress recently increased the number of GS-16 ALJ positions (P.L. 95-251, 92 Stat. 183, Mar. 27, 1978). CSC, however, is expected to be "tight fisted" in allocating these new positions. The criteria to be followed by CSC in creating these new ALJ positions include eliminating nonproductive members of the current ALJ corps. Without performance standards and appraisals, neither CSC nor the agencies employing ALJS can objectively identify nonproductive ALJS. Accordingly, there is little likelihood that CSC will be able to comply with congressional criteria. LACK OF AN EFFECTIVE REVIEW SYSTEM Financial disclosure regulations apply equally to ALJS as well as other Federal employees. Financial disclosure statements, however, are generally not being reviewed by the person making case assignments to see if ALJS might be in a possible conflict-of-interest situation. If an ALJ is in a conflict-of-interest situation questions can then be raised about the fairness with which he/she makes decisions. Analysis of the ALJs' response to our questionnaire shows that over 95 percent of the 323 who responded either said no or don't know to "are financial disclosure statements used in assigning cases?" In 1965 the President issued Executive Order 11222 which prescribed standards of ethical conduct for Government officers and employees. The President directed CSC to establish guidelines and administer the financial disclosure reporting system for Presidential appointees. The order replaced Executive Order 10939 issued in 1961 as a guide for Presidential appointees and members of the White House staff. Key provisions of the order state that: - "Employees may not (a) have direct or indirect |