ALJ Conduct at Fair Hearings

by Gene Doyle, LMSW

In a May 1, 1991 memorandum to ALJs, Acting Deputy Counsel for Fair Hearings, Russell J. Hanks, set forth the Office of Administrative Hearings (OAH) policy with respect to social services districts' failures to comply with 18 NYCRR Part 358. Under the heading, "Other Concerns" (at p. 3), Mr. Hanks stated that:

"Hearing officers must always demonstrate appropriate demeanor and maintain, and appear to maintain, their impartiality prior to, during, and after hearings. This includes avoiding ex-parte conversations and suggesting to the parties how the case will be decided. Hearing officers should make all required opening statements."

In a December 11, 1996 memorandum to ALJs, Deputy General Counsel for Administrative Hearings Russell J. Hanks set forth OAH policy with respect to the development of an adequate Fair Hearing record and related matters. Under the heading, "Other Concerns" (at p. 3), Mr. Hanks stated that:

"Hearing officers must always demonstrate appropriate demeanor and maintain, and appear to maintain, their impartiality prior to, during, and after hearings. This includes avoiding ex-parte conversations with either the agency or the appellant, or suggesting to the parties how the case may be decided.  Off-the-record discussions should also be avoided; where such discussions do take place, a precise summary of the conversation should be stated for the record, and agreed upon by the parties, before proceeding. A simpler method would be to leave the tape recorder running at all times. Cassette tapes are cheaper than litigation losses due to incomplete records, and no time need be spent summarizing off the record activity."

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