--"An employee shall not engage in any outside
employment, including teaching, lecturing, or
writing, which might result in a conflict, or
apparent conflict, between the private interests
of the employee and his official Government duties
and responsibilities ***." (Section 202.)

no employee shall solicit or accept,

directly or indirectly, any gift, gratuity, favor,
entertainment, loan, or any other thing of monetary
value, from any person, corporation, or group which:

"(1) has, or is seeking to obtain, contractual
or other business or financial relationship
with his agency;

"(2) conducts operations or activities which are
regulated by his agency; or

"(3) has interests which may be substantially

affected by the performance or nonperformance
of his official duty." (Section 201.)

CSC developed a financial disclosure form for use throughout the executive branch for all levels of employees. The form requires the disclosure of financial interests (business entities in which an interest is held), outside employment, creditors, and interests in real property owned as of June 30 of each year. The amount of financial interest or indebtedness, or the value of real property, is not required to be disclosed. In 1975 the CSC form was revised to require disclosure of financial interests affected or restricted by agency and statutory prohibitions.

In this regard CSC requires that each agency design its financial disclosure system so that it is effective in disclosing conflicts or apparent conflicts of interest. The chief at NLRB does review the ALJ's financial statements but not for the purpose of assigning cases. At Labor, ICC, and OSHRC, however, the ALJS fill out the statements but send them to officials not involved in case assignments. The chief, who is responsible for case assignment, does not review the statements. As a result, the effectiveness of the systems in disclosing conflicts or apparent conflicts is questionable. Disclosure of any interest they own which could conflict with any cases assigned to them is left to the discretion of the ALJs. While most ALJS would no doubt disqualify themselves from cases in which they had an interest, the agencies should insure, to the extent possible, that

cases are not assigned to a judge where a possible conflict of interest may exist. We believe the chief ALJ is in the best position to make this determination when assigning cases by reviewing the ALJ's disclosure statement.

CHAPTER 4

THE CIVIL SERVICE COMMISSION'S

ROLE NOT CLEARLY DEFINED

The Administrative Procedure Act distinguishes Administrative Law Judges from other Federal employees to provide them with a measure of independence in reaching decisions. A major provision of the APA specifically assigns the Civil Service Commission the responsibility to determine ALJ qualification, compensation, and tenure--functions normally vested with employing agencies. The APA, however, makes no mention as to whether these specific functions are in addition to those Federal personnel functions for which CSC is normally responsible--issuing specific personnel management guidelines and periodically evaluating agency compliance with such guidelines. As a result, CSC has been reluctant to perform these normal functions and has not been as helpful as it could in assisting agencies employing ALJs to resolve their personnel management problems noted in chapter 3. Moreover, there is also a question as to whether CSC can effectively fulfill its specific ALJ responsibilities as required by APA.

THE CSC'S ROLE

CSC, as the personnel management agency of the President, is generally responsible for issuing personnel management guidelines and subsequently evaluating agencies' compliance with such guidelines. With regard to ALJs, however, CSC, by virtue of section 11 of the APA is assigned specific personnel management responsibilities normally delegated to the agency for which the employee works. These specific responsibilities assigned to CSC to protect ALJ decisional independence primarily involve determining ALJ aualifications and compensation and the basis for actions affecting ALJ tenure. CSC is also responsible for approving agencies' requests for additional ALJS and temporarily reassigning ALJS to agencies which need their services.

CSC has delegated all of its ALJ responsibilities to its Office of Administrative Law Judges. This office is staffed with four professionals who spend most of their time determining initial qualifications of prospective ALJS (including processing 400 applications annually as well as maintaining registers of ALJ eligibles), and arranging temporary interagency ALJ assignments.

Although the Director of the Office of Administrative Law Judges maintains personal contact with the chiefs and

individual ALJs, the feedback he receives on the agency personnel management efficiency is often second hand, sporadic, and anecdotal. He receives no regular agency caseload data and limited information on ALJ productivity or use.

The Executive Director of CSC said he believes that agencies have interpreted section 11 of the APA to the point that many ALJS believe they are totally independent. Accordingly they are reluctant to exercise personnel management control of ALJs. While recognizing that agencies are not doing all they should, he also acknowledged that CSC could be subject to similar criticism. CSC, as is the case with other agencies, however, is unsure as to the extent it can or should be involved in ALJ personnel management and has been reluctant to assume an active role. In this regard CSC plans, after its Advisory Committee on ALJS 1/ issues its final report, to meet with officials of agencies employing ALJS to discuss the responsibilities of the agencies and CSC regarding ALJ personnel management. While this endeavor should help both parties identify those personnel management areas for which they believe they are responsible, there is no assurance that their views will be in agreement with the intent of the Congress. Accordingly,

the APA may have to be amended to be more specific with the parties involved in each aspect of personnel management.

PROBLEMS ASSOCIATED WITH CSC'S RELUCTANCE

TO ISSUE GUIDELINES AND CONDUCT
PERSONNEL MANAGEMENT EVALUATIONS

One purpose of the APA is to provide ALJs protection from undue agency influence--to give them a measure of independence. To accomplish this, the legislation excludes ALJS from agency performance ratings and assigns CSC responsibility for ALJ qualification, compensation, and tenure. The APA is, however, silent with respect to who is responsible for the remaining elements of personnel management.

1/A 13 member committee composed of CSC and agency personnel, ALJS, chief ALJS, circuit court judges, law professors, an assistant attorney general, and officials of the ABA and the Federal Judicial Center. Its purpose is to make recommendations to CSC for improvements in the management and use of ALJs.

Effect of nonspecificity of the APA

Because the APA is silent regarding responsibility for most aspects of ALJ personnel management, including the party responsible for ALJ evaluation--critical to the effective accomplishment of all other personnel management elements--neither agencies employing ALJs nor CSC is sure as to the extent they can or should institute personnel management controls. If attempted, such action might be interpreted as constituting an unwarranted abridgment of ALJ impartiality. As a result, as indicated in chapter 3, agencies allow ALJS to function virtually unsupervised. They are free to do as they please with little fear of consequence.

CSC, although aware of agencies' difficulties, has not been particularly helpful in developing solutions. It has not issued written guidelines or periodically evaluated and recommended improvements to agency personnel management systems as is the case with other Federal employees. This inactivity on the part of CSC--which is not involved in the administrative decisionmaking process and therefore less likely to be criticized for interfering with ALJ independence--tends to make agencies, which are involved, even more likely to believe that limited agency involvement in ALJ personnel management is justified.

INADEQUATE DATA TO EVALUATE AGENCY
REQUESTS FOR ADDITIONAL ALJS

CSC is responsible for allocating GS-15 and GS-16 ALJ positions to the various agencies using their services. However, CSC receives little information regarding ALJ use and productivity and accordingly has virtually no basis to evaluate agency requests for additional ALJs. Generally, CSC accept whatever justification the agency provides. An internal CSC memorandum from the Office of Administrative Law Judges to the Bureau of Executive Manpower relative to a Securities and Exchange Commission request for an additional GS-16 ALJ position noted "As in most other cases, this office is in no position to question the justification presented." Notwithstanding the above, CSC granted the position.

Without appropriate productivity data, CSC is unable to assure that ALJS are being used effectively. At ICC, for example, cases normally handled by an internal group of GS-12 and GS-13 attorneys were diverted to the ALJS because their workload was low. At the same time, NLRB was discussing with