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Off-the-Record Conversations with ALJs

by Gene Doyle, LMSW

In a March 17, 1995 memorandum from Office of Administrative Hearings (OAH) attorney, Robert D. McDougall, ALJs were reminded that

"all conversations occurring between hearing officers and appellants and/or their representatives and/or the agency's representatives must take place on the record. There can be no ex-parte conversations with any party off-the-record concerning the subject matter of the hearing. This also includes an off-the-record review of the agency's evidence prior to the hearing.

     "A complete record of all discussions and the submission of all evidence at the time of the hearing is required to protect the due process rights of the parties to defend hearing officers against allegations of improprieties in the hearing process."

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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