OFFICE OF ADMINISTRATIVE HEARINGS ORGANIZATIONAL CHART

Transcription

1 OFFICE OF ADMINISTRATIVE HEARINGS ORGANIZATIONAL CHART Chief Administrative Law Judge Mary Oates Walker OAH Advisory Committee Commission on Selection and Tenure of Administrative Law Judges Executive Assistant Budget Officer Executive Director Tiffini Greene ---- Agency Management and Operational Support Deputy Chief ALJ Mark Poindexter ---- Trials, Appeals and Judicial Management General Counsel Kiyo Oden Tyson ---- Judicial Assistance and Legal Counsel Clerk of Court Calonette McDonald ---- Case Management and Judicial Support Administrative Officer (1) January 15, 2014 HR Specialist (1) IT Manager (1) Principal ALJs (6) ALJs (24) 3 vacancies Attorney- Advisors (3) 1 frozen until FY15 Paralegals (4) Law Clerk (frozen) Staff Attorney (1) Resource Center Coordinator (1) Interns (.3) vacant Deputy Clerk of Court Customer Service Coordinator (1) Receptionists (1.5) Legal Assistants- Resource Center (4) Legal Assistants (12) Court Clerks (6) Legal Administrative Specialist (1)

2 Office of Administrative Hearings (FS0) Schedule A as of January 15, 2014 Agency FY Fund Post Numb Title Grade Step Status Salary Fringe Benefits Program Name Prog Code FTE FS Deputy Chief Admin Law Judge 10 0 F 149,350 27,436 Trials/Appeals & Justice Mgmnt 020A 1 FS Chief Administrative Law Judge 11 0 F 165,766 30,451 Program Direction & Oversight 050A 1 FS Administrative Law Judge 9 0 F 143,222 26,310 Trials/Appeals & Justice Mgmnt 020A 1 FS Legal Assistant (Court) 7 1 V 35,748 6,567 Case Mgmnt & Judicial Support 040A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Supvy Legal Assistant (Court) 12 0 F 68,962 12,668 Case Mgmnt & Judicial Support 040A 1 FS Executive Assistant 12 5 F 72,367 13,294 Program Direction & Oversight 050A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Supvy Clerk of Court 13 0 F 103,097 18,939 Case Mgmnt & Judicial Support 040A 1 FS Administrative Law Judge 9 0 F 143,222 26,310 Trials/Appeals & Justice Mgmnt 020A 1 FS Legal Admnistrative Specialist 11 5 F 58,716 10,786 Case Mgmnt & Judicial Support 040A 1 FS General Counsel 9 0 F 128,750 23,651 Judicial Assist./Legal Counsel 030A 1 FS Mgmnt Liaison SSpecialist 13 6 F 86,056 15,808 Personnel FS Legal Assistant (Court) 7 6 F 41,958 7,708 Case Mgmnt & Judicial Support 040A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Legal Assistant (OA) (Court) 6 2 F 33,383 6,132 Case Mgmnt & Judicial Support 040A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Customer Service Coordinator 13 6 F 86,056 15,808 Case Mgmnt & Judicial Support 040A 1 FS Budget Officer 14 5 F 102,850 18,894 Budget Operations 110F 1 FS Sr. Attorney Advisor 8 0 F 98,571 18,107 Judicial Assist./Legal Counsel 030A 1 FS Program Intern 5 1 V 8,736 0 Personnel FS Administrative Law Judge 9 0 V 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Legal Assistant (Court) 7 3 F 38,232 7,023 Case Mgmnt & Judicial Support 040A 1 FS Administrative Law Judge 9 0 F 143,222 26,310 Trials/Appeals & Justice Mgmnt 020A 1 FS Court Clerk 9 2 F 44,561 8,186 Case Mgmnt & Judicial Support 040A 1 FS Court Clerk 9 2 F 44,561 8,186 Case Mgmnt & Judicial Support 040A 1 FS Attorney-Advisor (General) 7 0 F 80,113 14,717 Judicial Assist./Legal Counsel 030A 1 FS Court Clerk 9 4 F 47,321 8,693 Case Mgmnt & Judicial Support 040A 1 FS Administrative Officer 13 5 F 83,679 15,372 Program Direction & Oversight 050A 1 FS Legal Assistant (Court) 7 5 F 40,716 7,480 Case Mgmnt & Judicial Support 040A 1 FS Legal Assistant (Court) 7 5 F 40,716 7,480 Case Mgmnt & Judicial Support 040A 1 FS Attorney-Advisor (General)-frozen 7 0 V 74,263 13,642 Judicial Assist./Legal Counsel 030A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Legal Assistant 6 1 F 8,065 0 Case Mgmnt & Judicial Support 040A 0.25 FS Inform Tech Specialist 13 5 F 83,679 15,372 Information Technology FS Legal Assistant (Court) 7 2 F 36,990 6,795 Case Mgmnt & Judicial Support 040A 1 FS Court Clerk 9 4 F 47,321 8,693 Case Mgmnt & Judicial Support 040A 1 FS Attorney-Advisor 7 0 F 83,545 15,347 Judicial Assist./Legal Counsel 030A 1 FS Administrative Law Judge 9 0 F 143,222 26,310 Trials/Appeals & Justice Mgmnt 020A 1 FS Legal Assistant (Court) 7 3 F 38,232 7,023 Case Mgmnt & Judicial Support 040A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Attorney-Advisor (General) 7 0 F 74,263 13,642 Judicial Assist./Legal Counsel 030A 1 FS Staff Attorney 6 0 F 60,471 11,109 Judicial Assist./Legal Counsel 030A 1 FS Executive Director 9 0 F 128,750 23,651 Program Direction & Oversight 050A 1 FS Administrative Law Judge 9 0 V 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Court Clerk 9 2 F 44,561 8,186 Case Mgmnt & Judicial Support 040A 1 FS Legal Assistant (Court) 7 5 F 40,716 7,480 Case Mgmnt & Judicial Support 040A 1 FS Administrative Law Judge 9 0 F 143,222 26,310 Trials/Appeals & Justice Mgmnt 020A 1 FS Administrative Law Judge 9 0 F 143,222 26,310 Trials/Appeals & Justice Mgmnt 020A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Legal Assistant (Court) 7 3 F 38,232 7,023 Case Mgmnt & Judicial Support 040A 1 FS Administrative Law Judge 9 0 F 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Legal Assistant (Court) 7 2 F 36,990 6,795 Case Mgmnt & Judicial Support 040A 1 FS Information Receptionist 6 3 F 34,508 6,339 Case Mgmnt & Judicial Support 040A 1 FS Legal Assistant (Court) 7 5 F 40,716 7,480 Case Mgmnt & Judicial Support 040A 1 FS Legal Assistant (Court) 7 3 F 38,232 7,023 Case Mgmnt & Judicial Support 040A 1 FS Legal Assistant (Court) 7 3 F 38,232 7,023 Case Mgmnt & Judicial Support 040A 1 FS Paralegal Specialist 9 4 F 47,321 8,693 Judicial Assist./Legal Counsel 030A 1 FS Attorney-Advisor (General) 7 0 F 74,263 13,642 Judicial Assist./Legal Counsel 030A 1 FS Paralegal Specialist 9 1 F 43,181 7,932 Judicial Assist./Legal Counsel 030A 1 FS Paralegal Specialist 9 3 F 45,941 8,439 Judicial Assist./Legal Counsel 030A 1 FS Paralegal Specialist 9 2 F 44,561 8,186 Judicial Assist./Legal Counsel 030A 1 FS Administrative Law Judge 9 0 V 139,977 25,714 Trials/Appeals & Justice Mgmnt 020A 1 FS Legal Assistant (Court) 7 3 F 38,232 7,023 Case Mgmnt & Judicial Support 040A 1 Total FTEs 77.55

3 GOVERNMENT OF THE DISTRICT OF COLUMBIA OFFICE OF ADMINISTRATIVE HEARINGS FY14 Budget Enhancement Request (FS0) Restoration of Funding for Two ALJ Positions The Office of Administrative Hearings (OAH) seeks an enhancement of $157,076 in order to restore two Administrative Law Judge (ALJ) positions. The FY14 revised MARC was attained by reclassifying two vacant ALJ positions to Attorney-Advisor positions that have lower salaries. The agency needs to onboard two ALJs in FY14 in order to handle the increased caseload that is expected. OAH has recently been asked to adjudicate several new case types, including: student discipline and residency determination cases from the DC Public Schools; licensure actions from the DC Lottery and Charitable Games Control Board; special education vendor appeals from the Office of the State Superintendent of Education; Certified Business Enterprise appeals from the Department of Small and Local Business Development; Securities violation cases from the Department of Insurance, Securities and Banking; and various housing cases from the Rental Conversion and Sale Division of DC Housing and Community Development. OAH s FY14 caseload is also expected to increase as a result of forthcoming legislative changes. When the District implements the federal Patient Protection and Affordable Care Act, OAH will hear appeals from eligibility determinations by the new Health Insurance Exchange. Case increases are also expected with the passage of the Boards and Commissions Reform Act of 2012, which consolidates many of the District s existing Boards and Commissions and places their adjudication functions with OAH. Program impact. If the two positions are not restored, OAH will not be able to keep pace with the increased case volume expected in FY14, which will result in a backlog. The agency will be unable to meet its goal of resolving cases quickly for the citizens of the District of Columbia. Position Salary Fringe (23.1%) Total Product (x2) ALJ 135,900 31, , ,586 Attorney-Advisor 72,100 16,655 88, ,510 Difference 78, ,076 One Judiciary Square, 441 Fourth Street, NW, Washington, DC (202) (P) (202) (F)

4 FY 2014 PERFORMANCE PLAN Office of Administrative Hearings MISSION The mission of the Office of Administrative Hearings (OAH) is to provide the District of Columbia s citizens and government agencies with a fair, efficient and effective forum to manage and resolve administrative disputes. SUMMARY OF SERVICES OAH is an impartial, independent agency which adjudicates cases for over 40 District of Columbia agencies, boards and commissions. OAH holds hearings, conducts mediations and provides other adjudication services to resolve disputes arising under the District s laws and regulations. PERFORMANCE PLAN DIVISIONS Executive 1 Judicial Court Counsel Clerk of Court AGENCY WORKLOAD MEASURES MEASURE FY 2011 Actual FY 2012 Actual FY 2013 YTD 2 Number of Cases Filed 21,647 16,064 17,927 Number of Hearings Held 6,523 6,642 5,170 Number of Final Orders Issued 13,648 20,762 14,341 Number of Appeals to DC Court of Appeals (by Calendar Year) Number of Cases Dismissed (including voluntary dismissals) ,023 3,057 2,076 Percentage of Notice of Infraction/Notice of Violation cases in which District prevails 51.3% 76.6% 45.6% 1 The Executive Division also includes the following budget divisions (1000) Agency Management and (100F) Agency Financial Operations. 2 Data is accurate as of June 30, Office of Administrative Hearings FY 2014 Performance Plan Government of the District of Columbia Published: October

5 Executive 3 SUMMARY OF SERVICES The Executive program includes Agency Management and Agency Financial Operations. The program provides administrative and operational support as well as the required tools to achieve programmatic results. This program is standard for all performance-based budgeting agencies. OBJECTIVE 1: Oversee and facilitate the coordination of interagency activities and initiatives between OAH and other District agencies. INTIATIVE 1.1: Ensure the update of OAH s website to facilitate the payment of Notice of Infraction tickets for DCTC. The OAH Act gave OAH authority to adjudicate all District of Columbia Taxicab commission (DCTC) cases as of October 1, See D.C. Official Code (b)(3). Despite this authority, only 181 DCTC cases have been filed at OAH since FY05. The vast majority of DCTC cases continued to be heard by Department of Motor Vehicles (DMV) pursuant to a Memorandum of Understanding between DMV and DCTC. In FY13, due to concerns about its on-going authority to adjudicate DCTC cases as well as resource limitations, the OCA directed that all DCTC cases be heard by OAH consistent with the OAH Act. To ensure a smooth transition, OAH will train staff in the use of etims, the new case management system for these cases. The Office will also update its website in FY14 by placing links to the DMV website for payment of taxicab tickets. In addition, information directing litigants to OAH s website will be included on the newly printed Notice of Infraction tickets for DCTC. In FY14, the expected outcome will be a reduction in the number of backlogged cases and user friendly access for litigants in the payment of taxicab tickets by way of OAH s website. Completion date: September KEY PERFORMANCE INDICATORS - Executive Measure FY 2012 Actual FY 2013 Target FY 2013 YTD 4 FY 2014 Projection FY 2015 Projection FY 2016 Projection Percentage of OAH staff trained in etims, the case management system for DCTC cases NA NA NA 5% 10% 15% 3 Executive includes the following budget divisions (1000) Agency Management and (100F) Agency Financial Operations. 4 Data is accurate as of June 30, Office of Administrative Hearings FY 2014 Performance Plan Government of the District of Columbia Published: October

6 Judicial 5 SUMMARY OF SERVICES The Judicial program ensures due process while working to improve the quality, efficiency, and efficacy of justice management. This program provides pre-trial management, hearings, appeals, and mediations. OBJECTIVE 1: To provide fair, balanced, and efficient administrative law services. INITIATIVE 1.1: Increase the clearance rate of cases disposed. In FY12, the Performance Measures Committee partnered with the OAH Committee on Case Management to form a Joint Committee. The purpose of this Joint Committee is to review current OAH best practices related to the fair and efficient allocation of cases to OAH s Administrative Law Judges, and, with the adoption of such an allocation model, develop meaningful performance measures with which to fairly gauge both individual and agency-wide productivity. Clearance rate is a new proposed performance measure for OAH in FY14, which has been adopted by the DC Court System. A measure of court efficiency, the clearance rate is the total number of cases disposed divided by the total number of cases added to the caseload (i.e. new filings and reinstated) during a given time period. Rates of over 100% indicate that the court disposed of more cases than were added, thereby reducing the pending caseload. In FY14, the expected outcome will be an increase in court efficiency by reducing the pending caseload. Completion date: September KEY PERFORMANCE INDICATORS - Judicial KPI FY 2012 Actual FY 2013 Target FY 2013 YTD 6 FY 2014 Projection FY 2015 Projection FY 2016 Projection Percentage of the total number of cases disposed NA NA NA 90% 92% 95% Percentage of unemployment insurance cases resolved within 97% 95% 99% 95% 95% 95% 90 days of filing 7 Percentage of hearings reduced due to mediation 8.3% 3.5% 1.3% 4.5% 5.5% 6.5% Percentage of non-unemployment insurance cases resolved within 120 days of filing 65% 55% 86.5% 60% 65% 70% 5 The Judicial Division includes the functions of Trial Appeals and Judicial Management. 6 Data is accurate as of June 30, The U.S. Department of Labor industry standard is 95% of cases resolved within 90 days of filing. Office of Administrative Hearings FY 2014 Performance Plan Government of the District of Columbia Published: October

7 Court Counsel 8 SUMMARY OF SERVICES The Court Counsel program supports the administrative court s judicial function by assisting judges in legal analysis, research, and drafting orders and notices; ensures agency compliance with applicable laws; assists with tracking of legislative and regulatory initiatives; maintains OAH s Resource Center and law library. OBJECTIVE 1: Improve the experience of participants who are limited or non-english proficient. INITIATIVE 1.1: Ensure that participants who are limited or non-english proficient are afforded equal access to information and services provided by OAH. In FY11, OAH opened a Resource Center to provide self-represented litigants with information and assistance related to their matters before OAH. An Attorney-Advisor serves as the Resource Center Coordinator and oversees OAH s access to justice and language access initiatives. During walk-in interview hours, self-represented litigants can meet with Resource Center staff or supervised volunteers regarding their cases and receive legal information and other informational brochures, many of which are available in multiple languages. In addition, OAH launched its new website with improved access to information, case materials, and forms available in multiple languages, as well as helpful instructional videos covering such topics as what members of the public can expect when they have a hearing. OAH will conclude FY13, by participating in the Website Language Support Project for Language Access. This effort is designed to provide core information about the agency in all 6 of the primary languages listed in the Language Access Act. Translated versions of vital documents will also be available on the appropriate language page, so as to make access to this information easier for LEP/NEP users. In FY14, the expected outcome will be increased understanding of OAH s procedures and increased quality assistance available for LEP/NEP customers in need. In turn, this would lead to an overall increase in customer satisfaction among LEP/NEP customers. Completion date: September KEY PERFORMANCE INDICATORS - Court Counsel Measure Number of translated versions of vital documents available on website Percentage of staff trained in Language Access FY 2012 Actual FY 2013 Target FY 2013 YTD 9 FY 2014 Projection FY 2015 Projection FY 2016 Projection NA NA NA NA NA NA 10% 12% 15% 8 The Court Counsel Division includes the functions of Judicial Assistance and Legal Counsel. 9 Data is accurate as of June 30, 2013 Office of Administrative Hearings FY 2014 Performance Plan Government of the District of Columbia Published: October

8 Clerk of Court 10 SUMMARY OF SERVICES The Court Counsel program provides an efficient intake of cases and supports the agency s case management system and caseload reporting; maintains forms and documentation; and serves as the primary customer service interface. OBJECTIVE 1: Improve the experience of participants in administrative hearings through quality customer service. INITIATIVE 1.1: Roll out specialized customer service training to all Clerk of Court staff who serve as OAH s primary customer service interface. In FY12, OAH revised its Customer Service Survey with the goal of measuring the satisfaction of litigants coming before OAH in four general areas: 1) The Hearing Facilities; 2) the Clerk s Office; 3) The Administrative Law Judge; and 4) The Hearing Process. The Clerk s Office also renewed its efforts to increase circulation of the updated survey which resulted in a better data capture for that fiscal year. In FY13, OAH experienced a slight decline in the number of Customer Service Surveys received as a result in the decline in the dissemination of the survey. As a result, the clerks received a specialized customer service training session identifying the importance of customer service. Additional changes were also made including: 1) placing signs throughout high traffic areas of the agency encouraging customers to complete a survey; 2) changing the color of the surveys to increase their visibility; and 3) increasing the accessibility of the surveys by placing them in various locations throughout the agency. The renewed effort by the Clerk s Office to increase the circulation coupled with the changes mentioned above should result in a better data capture for FY14 and beyond. Completion date: September 2014 KEY PERFORMANCE INDICATORS - Clerk of the Court FY 2012 FY 2013 FY 2013 FY 2014 Measure Actual Target YTD 11 Projection Percentage of consumer satisfaction surveys with a rating of at least Agree regarding the level of quality of OAH s service FY 2015 Projection FY 2016 Projection 92% 92.2% 91% 96% 97% 97% 10 The Clerk of the Court Division includes the functions of Case Management and Judicial Support. 11 Data is accurate as of June 30, Office of Administrative Hearings FY 2014 Performance Plan Government of the District of Columbia Published: October

9 GOVERNMENT OF THE DISTRICT OF COLUMBIA PUBLIC EMPLOYEE RELATIONS BOARD In the Matter of: ) ) International Federation of Professional ) and Technical Engineers, AFL-CIO ) ) Petitioner, ) PERB Case No. 12-RC-03 ) and ) ) District of Columbia Office of ) Administrative Hearings, ) ) Respondent. ) ) RESPONDENT S MOTION FOR FULL PERB HEARING AND EXCEPTIONS TO THE HEARING EXAMINER S REPORT AND RECOMMENDATIONS Pursuant to PERB Rule 556.5, Respondent District of Columbia Office of Administrative Hearings ( Respondent or OAH ) files this Motion for an oral argument and full hearing before the Public Employee Relations Board (the PERB or the Board ) on this matter for the reasons stated below. Additionally, pursuant to PERB Rule 556.3, Respondent makes the following exceptions to the Hearing Examiner s Report and Recommendations ( R&R ): A. The Hearing Examiner erred as a matter of law by ruling on OAH s Motion to Stay and Motion for Summary Judgment in violation of the PERB Rules B. The Hearing Examiner failed to find that OAH ALJs were Supervisors or Managers under the Comprehensive Merit Personnel System (the CMPA ) in accordance with the dictates of the OAH Establishment Act C. The Hearing Examiner erred as a matter of law in rejecting well-established PERB and Supreme Court precedent by finding that ALJs who served on Management Committees and effectively made policy recommendations to the Chief Judge were not managers D. The Hearing Examiner erred as a matter of law by concluding that the participation of the ALJs in a collective bargaining unit and/or their representation by the the International Page 1 of 43

10 Federation of Professional and Technical Engineers, AFL-CIO (the IFPTE or Union ) would not create unavoidable ethical conflicts in violation of the CMPA and the OAH Establishment Act E. The Hearing Examiner erred as a matter of law by concluding that the ALJs membership in the excepted service did not exempt them from participation in a collective bargaining unit under the CMPA F. The Hearing Examiner erred as a matter of law by rejecting PERB precedent and applying an improper standard of review that placed a burden of production on OAH to prove the unit was improper I. STANDARD OF REVIEW The Board will affirm a hearing examiner s findings of fact if they are reasonable, supported by the record, and consistent with Board precedent. American Federation of Government Employees, Local 1403 v. D.C. Office of the Attorney General, 59 D.C. Reg. 3511, Slip Op. No. 873 at p. 3; PERB Case Nos. 05-U-32 and 05-UC-01 (2011). Issues of fact concerning the probative value of evidence and credibility resolutions are reserved to the Hearing Examiner. Hatton v. Fraternal Order of Police/Dep t of Corrections Labor Committee, 47 D.C. Reg. 769, Slip Op. No. 451 at p.4, PERB Case No. 95-U-02 (1995). The Board rejects challenges to a hearing examiner s findings based on competing evidence, the probative weight accorded evidence, and credibility determinations. American Federation of Government Employees, 46 DC Reg. 6502, Slip Op. No. 588 at p. 4, PERB Case No. 98-U-16 (1999). Where a Hearing Examiner s findings, analysis, and conclusions are not reasonable, supported by the record, or consistent with Board precedent the Board has rejected the Hearing Examiner s findings and recommendations. See Fraternal Order of Police/Metropolitan Police Department Labor Committee v. District of Columbia Metropolitan Police Department, 60 DC Reg. 9212, Slip Op. No at 17, PERB Case 09-U-52(a) and 09-U-53(a) (2013) ( Because Page 2 of 43

11 the Hearing Examiner s finding... was not reasonable, supported by the record, or consistent with Board precedent, the Board rejects that finding. ); Doctors Council of the District of Columbia v. District of Columbia Dept. of Youth and Rehab. Servs., 60 DC Reg , Slip Op. No at p.10, PERB Case No. 11-U-22(2013) ( Despite the deference the Board provides the Hearing Examiner as a factual-finder, the Hearing Examiner s analysis and conclusions must be made in accordance with Board precedent. ). II. STATEMENT OF THE CASE AND FACTS A. The History and Organization of the OAH The D.C. Council created the OAH in 2001 to serve as an independent administrative court which provide[s] centralized adjudication services for several District agencies pursuant to the D.C. OAH Establishment Act (hereinafter OAH Establishment Act ). 1 OAH, About OAH, (last visited Aug. 6, 2013); see also D.C. Code , -.02 (2013). There are currently 32 Administrative Law Judges ( ALJs ) on the bench at OAH, who are overseen by the Chief Administrative Law Judge, Mary Oates Walker. About OAH, supra. OAH has jurisdiction over appeals from more than 40 District of Columbia agencies, boards, and commissions. OAH, About OAH, (last visited Aug. 6, 2013). In FY11, OAH had a caseload of 21,647 cases, and in FY12, the Agency adjudicated 16,051 cases. Resp t Ex. 8, at 8. The docket of cases is distributed to the ALJs pursuant to their designated jurisdictional assignment. See Resp t Mot. for Summ. J. Ex. A 1 Although signed into law in 2001, the law creating OAH did not go into effect until March 6, See D.C. Code (2013). Page 3 of 43

12 (Jurisdictional Cluster Designations); Resp t Ex. 8, at 8. Related jurisdictions are grouped into clusters that are headed by a Principal ALJ ( PALJ ). Id OAH ALJs Statutory Obligation to Function as Managers and Supervisors The D.C. Code requires ALJs to participate in managing the Agency and supervising OAH employees. See D.C. Code (a)(5)(2013) (requiring ALJs to [f]ully participate in Office management committees and management activities to set and steer policies relating to Office operations, including, without limitation, personnel matters ); (a)(6) (requiring ALJs to [s]upervise, direct, and evaluate the work of employees assigned to him or her ). (a) OAH Management Committees Currently there are ten Management Committees on which the ALJs serve. These Committees include: Case Management and Quality Control, Ethics, Events, Mediation, Performance Measures, Recruiting, Risk Assessment Control (RACC), Rules, Training and Education, and the Website Committee. See Resp t Ex. 9. All OAH ALJs currently serve or have previously served on a Management Committee. Tr. vol. 3, 731. The majority of ALJs are very active participants, many serving on multiple committees. See Resp t Ex. 9. These committees steer OAH policies and implement OAH s key initiatives. Tr. vol. 3, 538, 577, June 24, Some Committees are purposed with addressing OAH s on-going policy formation and implementation (i.e., the Rules Committee and Ethics Committee) (hereinafter referred to as Standing Management Committees ), while others are formed to complete specific short-term 2 Currently there are six jurisdictional clusters: (1) Health and Human Services, (2) Public Safety, Public Works, Transportation, and Environment, (3) Rental Housing and Schools, (4) Tax and Regulatory Affairs, (5) Unemployment Insurance, and (6) Case Management and Performance Measures. Page 4 of 43

13 goals (i.e., the Salary Correction Committee, the Revenue Committee, the Artwork Committee, and the Signage Committee which was tasked with developing signs to help OAH visitors navigate the building and find the hearing rooms) (hereinafter referred to as Special Management Committees ). See Tr. vol. 3, At the start of each fiscal year, the Chief Judge announces the designated Chairpersons of both Standing and Special Committees, and invites all ALJs who are interested in serving on a particular committee to contact the Committee Chair. See Pet r Ex. 28 ( from Chief Judge Walker announcing the FY13 OAH Committee Listings); Tr. vol. 3, , 594; Tr. vol. 1, 119, , June 18, 2013 (discussing the addition of ALJs to committees upon request); Tr. vol. 1, 121; see Resp t Ex. 9 (showing an updated committee list reflecting the addition of ALJs to committees upon their request). The Chief Judge designates committees based on OAH s statutory requirements, OAH priorities designated by the D.C. Council, the Chief Judge s priorities, and suggestions made by the ALJs. See D.C. Code (2013); Tr. vol. 2, , June 21, 2013, vol. 3, , 578; see also Resp t Ex. 7, 10, Table 1 Compliance Table (key initiatives outlined by the D.C. Council s Committee on Public Safety and the Judiciary); Tr. vol. 3, Committee chairs are chosen for either their expertise in an area, or because they have a particular interest in the committee. Tr. vol. 4, 540, 734. Included in the announcement of the upcoming fiscal year s management committees is a suggested list of committee members. See Pet r Ex. 28. Committees are primarily comprised of ALJs, but OAH staff is assigned to Committees where appropriate, given the nature of Committee work. 3 See Resp t Ex. 9; Tr. vol. 3, For example, a member from the IT staff is included on the Website Committee, which is charged with maintaining OAH s website, but only ALJs serve on the Ethics Committee which provides Opinions applying and Page 5 of 43

14 The Standing Management Committees regularly issue significant policy recommendations and provide annual reports to the Chief Judge regarding the respective committees accomplishments. See Resp t Ex. 5 (FY 2011 Management Committee reports); Resp t Ex. 12 (FY 2012 Management Committee reports); Tr. vol. 3, 543. The Chief Judge usually adopts Management Committee recommendations without alteration, and the recommendations and decisions made by the respective Management Committees become OAH policy. Each Standing and Special Management Committee issues annual summaries of their work, a compilation of which are published in an annual report that the Chief Judge submits to the Council of the District of Columbia and the public, for review of OAH s accomplishments and activities for the previous fiscal year. See Resp t Ex. 5; Resp t Ex. 6 (OAH FY 2011 Annual Report); Resp t Ex. 8 (OAH FY 2012 Annual Report); Resp t Ex. 12; Tr. vol. 3, 579, 595. In a May 23, 2013 Confidential Report Of Investigation, the Leftwich & Ludaway, LLC law firm reported on the results of its review of the opportunities for ALJs to participate in the management of OAH operations, among other issues presented for investigation. 4 In its report, Leftwich & Ludaway points to the fact that [t]he Act provides for the creation of management committees in which all ALJs are expected to fully participate. Resp t Ex. 10A, at 40. The Report concluded that OAH has benefited from the work of the Committees, and that Chief Judge Walker has utilized the committees to get input from ALJs and senior staff, and all ALJs are invited to participate. Resp t Ex. 10A, at The report found that interpreting the Agency s Ethical Rules to confidential queries proffered by the Chief Judge and other ALJs. See Resp t Ex Leftwich & Ludaway was engaged by the District of Columbia Executive Office of the Mayor and the OAH to conduct an independent internal investigation of the allegations made by certain ALJs in a June 13, 2012 letter to Chairman Phil Mendelson of the D.C. City Council. Resp t Ex. 10A, at i (Executive Summary). Page 6 of 43

15 committee input has helped to shape key management decisions over the past three (3) years. Resp t Ex. 10A, at Consistent with the statutory scheme that was designed to have OAH managed by the Chief Judge, with the direct management support of all other ALJs, many of the Standing Management Committees created by the Chief Judge correspond directly to her statutorily required duties set forth in the OAH Establishment Act. For example, the OAH s statute requires the Chief Judge to [d]evelop and implement rules of procedure and practice for cases before the Office, and the Rules Committee has been tasked with developing the required rules of procedure for OAH. See D.C. Code (a)(7) (2013); Tr. vol. 3, 566. From , the Rules Committee developed OAH s first set of procedural rules. Tr. vol. 3, 566. Any party who has a case before OAH is required to comply with these rules. Tr. vol. 3, 566. Every three years, the Rules Committee is required to review and propose revisions to the Rules. Tr. vol. 4, 844. In 2010, the Rules Committee completed a comprehensive revision of OAH s procedural rules that simplify[ed] the language of the previous OAH rules and ma[d]e a number of changes in existing OAH practices. Resp t Ex. 5; Tr. vol. 3, 567, vol In 2012, the Rules Committee drafted significant changes to the OAH procedural rules related to electronic filing and service, and emergency rules for the student discipline and contested residency cases. Resp t Ex. 12. The Committee developed and proposed comprehensive changes, all of which were accepted in full, duly published and adopted. Resp t Ex. 10A, at 40. OAH s statute similarly requires the Chief Judge to [d]evelop and implement a code of professional responsibility for Administrative Law Judges. D.C. Code (a)(9) (2013). OAH s Code of Ethics was originally drafted by members of the Ethics Committee. Page 7 of 43

16 Pet r Ex. 5, at 3.1; Tr. vol. 3, OAH s Code of Ethics applies to all ALJs at OAH, including the Chief Judge. Tr. vol. 3, The Ethics Committee is responsible for provid[ing] [] guidance to ALJs concerning their obligations under the OAH Code of Ethics for Administrative Law Judges. Upon request of an ALJ, the Committee issues formal opinions interpreting the Code. Committee members also provide informal advice to ALJs about issues arising under the Code. Resp t Ex. 5; Resp t Ex. 12; Tr. vol. 3, The OAH adjudicates cases within its broad jurisdictions. OAH s statute requires the Chief Judge, in a critical role, to [m]onitor and supervise the quality of administrative adjudication and [d]evelop and implement annual performance standards for the management and disposition of cases assigned to Administrative Law Judges. D.C. Code (a)(8), (10) (2013). The Performance Measures and Case Management Committee is tasked with reviewing OAH s existing performance measures, otherwise known as the Key Performance Indicators, or KPIs ; researching and reviewing the performance standards adopted by other court systems; and providing recommendations based on that review to the [Chief Judge] for possible tracking and/or implementation. Resp t Ex. 12. The Performance Measures Committee was originally charged with developing an evaluation system for the individual ALJs, including those ALJs serving on the Committee. Tr. vol. 4, 799, June 25, As OAH began to acquire jurisdiction over additional administrative agencies, some of the ALJs voiced concern about the perceived unfair workload balance among the different jurisdictional clusters. Tr. vol. 3, In response, the Performance Measures Committee was combined with the Case Management Committee to form a joint Committee for the purpose of reviewing current OAH and best practices related to the fair and efficient allocation of cases to OAH s ALJs, and... [to] Page 8 of 43

17 develop meaningful performance measures with which to fairly gauge both individual and agency-wide productivity. Tr. vol. 3, 596, vol In its FY 2011 Report, the Joint Committee recommended that the Agency commission an outside organization to conduct an independent study of the Agency in order to better advise the Committee s work. See Resp t Ex. 5, at p. 9. In response, the Chief Judge commissioned the law firm, Leftwich & Ludaway, who in turn hired the National Center for State Courts to do an organizational study and issue a report as part of a larger investigation done by Leftwich & Ludaway. See Resp t Ex. 8, at 15. The work of the Joint Committee was temporarily suspended pending completion of the report, but has recently been resumed to continue this vital management work by ALJs. Tr. vol. 3, OAH s statute requires the Chief Judge to [e]stablish standard and specialized training programs for Administrative Law Judges, and [p]rovide for, or require completion of, continuing education programs for Administrative Law Judges and other employees of the Office deemed to be necessary or desirable. D.C. Code (a)(4), (6) (2013). The purpose of the Training Committee is to develop and implement training programs in support of the goals and objectives of OAH. Resp t Ex. 5; Tr. vol. 3, 623. The OAH s tradition is that the ALJ serving as Chair of the Training Committee holds the title of Director of Training. Resp t Ex. 12; Tr. vol. 3, 623. The Committee s primary function is to provide training for judges, but the Committee also develops training programs for the Office of the General Counsel, legal assistants, and other support staff. Resp t Ex. 5; Tr. vol. 3, 623. To that end, the Committee coordinates functions with the Executive Director, General Counsel, and Chief Clerk, as well as with the other committees. Id. Among other responsibilities, the ALJ serving as Director of Training represents OAH with training providers, such as schools and other businesses outside of Page 9 of 43

18 OAH that offer training services to both OAH ALJs and support staff. Tr. vol. 3, 627. Although budget allocation and general guidelines must be followed, the Training Committee works independently of the Chief ALJ and the Deputy Chief ALJ to negotiate training contracts and to implement training for OAH employees. Resp t Ex. 13; Resp t Ex. 14; Tr. vol. 3, The OAH must recruit and retain high quality personnel to carry out its mission. OAH s statute requires the Chief Judge to [a]ppoint... staff employed by the Office. D.C. Code (a)(5) (2013). The Recruitment Committee is tasked with recruiting, training, and hiring summer law clerks and post-law school graduate assistants. Tr. vol. 3, 558. In executing its mission, the ALJs on the Recruitment Committee represent OAH at law schools and recruitment fairs in an effort to increase awareness of opportunities at the Agency. Resp t Ex. 5; Resp t Ex. 12. Former clerks chosen by the Recruitment Committee are often later hired by OAH for full time positions. Resp t Ex. 5. One of the mission critical issues highlighted by the D.C. Council was for the OAH to fully develop a window for alternative dispute resolution. See Resp t Ex. 7, 10, Table 1 Compliance Table (key initiatives outlined by the D.C. Council s Committee on Public Safety and the Judiciary). The OAH s Mediation Committee is tasked with developing OAH s alternative dispute resolution program. Resp t Ex. 12; Tr. vol. 3, 733. Led by ALJs, the Mediation Committee worked with the Rules Committee to develop procedural rules for mediation, and oversaw the furnishing and selection of artwork for the new Mediation Center. Resp t Ex. 5; Tr. vol. 3, 733. Because of the ongoing efforts of the Committee, OAH now offers public litigants efficient alternative means of resolving disputes. Resp t Ex. 8, at 13. All OAH ALJs are trained mediators. Resp t Ex. 8, at 13. Page 10 of 43

19 In addition to the vitally important work of these Standing Committees, from time to time Special Committees have been created with the purpose of attaining a specific agency objective. Often, the need for these committees is brought to the attention of the Chief Judge by the ALJs, and chaired by those same judges. Once the goal is reached, the committee is disbanded and resources are reallocated to other committees. For example, the Pro Bono Committee was previously charged with ensuring that pro se litigants would be properly supported in adjudicating their cases. Tr. vol. 3, 552. In carrying out this charge, the Committee directed the creation of the Resource Center, as a central resource area for pro bono litigants, which replaced the need for the Committee. See Resp t Ex. 5; Tr. vol. 3, 553. The Resource Center is currently run by an Attorney Advisor, and is a physical location within OAH where pro se litigants can seek assistance. Tr. vol. 3, 553. According to the FY2011 Report prepared by the Pro Bono Committee, Committee members assisted with designing the Resource Center space, and [a]ssisted with recruiting, interviewing, hiring, training and supervising [the] Resource Center Coordinator. See Resp t Ex. 5. The Committee also helped to prepare materials for selfrepresented litigants and reached out to the D.C. Bar and law school clinics to recruit attorney volunteers to support the Resource Center. Tr. vol. 3, 552. The Revenue Committee was a Special Managerial Committee that was initiated by some of the senior ALJs who in their prior government positions acquired expertise in federal revenue sources from which OAH might be eligible to draw funding to increase its limited budget. Tr. vol. 3, 560. The Chief Judge formed the Revenue Committee at the request of those ALJs, and permitted them to represent OAH in efforts to increase revenue. Tr. vol. 3, 560. In pursuit of this goal, Revenue Committee members met with vendors, developed a time sheet enabling ALJs Page 11 of 43

20 to capture their reimbursable work, including procedures for ALJs to track time in order to allow OAH to receive reimbursement for eligible program adjudication. Resp t Ex. 5; Tr. vol. 3, 561. In carrying out their work, Revenue Committee members negotiated with District agencies on behalf of OAH, and developed Memoranda of Understanding with those agencies in order to allow OAH to request federal funding. Tr. vol. 3, The Revenue Committee was disbanded once it had led OAH s access to the new funding sources, generating over $100,000 in new revenue for OAH. Tr. vol. 3, 563. In addition to the Standing and Special Management Committees, individual and groups of ALJs also fulfill their statutory duty to participate in the management of OAH in other significant ways. ALJs directly participate in the management of OAH through additional committees created by the ALJs within their jurisdictional clusters to develop policies and implement procedures to more effectively manage day-to-day operations specific to their jurisdictions. See Tr. vol. 2, , vol. 3, 540. These committees take on issues related to the operations of a jurisdictional cluster, from distribution of staff resources among the ALJs, to methods of facilitating cases, and developing templates to help increase Agency efficiency in adjudications work flow. Tr. vol. 2, , vol. 3, 540, 696. When the Agency has a need, the ALJs often take on additional managerial roles on behalf of OAH. For example, Principal Judge Steven Wellner served as lead liaison to the Department of Employment Services. See Tr. vol. 2, 323. In this role, he scheduled and chaired stakeholder meetings, and represented the OAH in these stakeholder meetings. Tr. vol. 2, 332. Prior to the hiring of an Executive Director, Judge Arabella Teal served as OAH s Special Budget Liaison. Resp t Ex. 20; Tr. vol. 3, 701. In this position, she made budget Page 12 of 43

21 recommendations, drafted OAH s budget, and testified before the D.C. Council alongside the Chief Judge. Resp t Ex. 20. Judge Teal also worked directly with OAH s Executive Director and assisted the Chief Judge in support of OAH s Strategic Planning Initiative. Resp t Ex. 21; Tr. vol. 3, Both Judges Calonette McDonald and Principal Judge Ann Yahner have served as the Clerk of Court when budgetary constraints did not allow the Agency to hire a Clerk of Court. Tr. vol. 3, 701. As required, ALJs meet their statutory management mandates by taking on both significant and minute details of OAH management and operations. For example, a group of ALJs developed the scheduling process and take lead responsibility for scheduling hearing rooms for adjudications. See Tr. vol. 2, (Judge Wellner describing ALJ participation in the creation of the scheduling grid; an idea that originated from Judge Jesse Goode). The availability for ALJs to participate in these roles is essential to the management of the Agency. See Tr. vol. 3, 669. (b) ALJs Supervision of OAH Employees OAH ALJs have a statutory obligation to supervise, direct, and evaluate the work of employees assigned to them. See (a)(6) ( [s]upervise, direct, and evaluate the work of employees assigned to him or her ). Consequently, the ALJs regularly participate in the supervision of OAH employees. The Chief Judge assigns a Principal ALJ ( PALJ ) to head each jurisdictional cluster, and rotates ALJs serving as PALJs every 1 ½ to 2 years. Tr. vol. 3, 758. PALJs do the same judicial work as non-palj ALJs, but also take on an additional supervisory role. The PALJs manage the caseload within the jurisdictional clusters, intervene between the ALJs and clerks if an ALJ is unable to handle a difficult situation, and coordinate ALJ feedback Page 13 of 43

22 for evaluations regarding Attorney Advisors and legal assistants. Tr. vol. 1, 74-76, vol. 3, 574, 720. The PALJs also approve ALJ time and attendance and grant leave to ALJs within their jurisdictional cluster. Tr. vol. 4, If a PALJ is not available, the remaining ALJs assigned to the cluster take on the role and responsibilities on a rotating basis, resulting in most ALJs serving as Acting PALJ from time-to-time. See Tr. vol. 1, 179, vol. 2, 328, vol. 3, 758 (noting that only three ALJs have not served in this role thus far). The role of Acting PALJ may be transferred from one ALJ to another through passing around a cell phone. Id. PALJ Wellner testified that when additional hearing rooms are assigned in the Unemployment Cluster, whichever ALJ is holding the designated cell phone is considered the Acting PALJ. Id. The Chief Judge is not involved in assigning an Acting PALJ when a Principal is unable to perform their duties. Tr. vol. 1, 179. As noted above, ALJs are organized into specific jurisdictional clusters and only hear cases in those particular clusters. See Resp t Mot. for Summ. J. Ex. A (Jurisdictional Cluster Designations). Attorney Advisors, paralegals, many legal assistants 5, court clerks, and other support and administrative staff are assigned to work for a particular jurisdictional cluster. See Tr. vol. 1, 107. Many legal assistants are assigned to work for a particular jurisdictional cluster, and a specific set of ALJs. Tr. vol. 1, 77, vol. 3, 686. Legal assistants work with ALJs in the preliminary stages of a case being filed and throughout its progression. See Tr. vol. 3, When a case first arrives at OAH, the legal assistants process the case and prepare the file for an individual ALJ s review. See Tr. vol. 3, Legal assistants prepare exhibit lists, mark the documents in the file they think are exhibits, prepare exhibits, serve orders on the parties, and 5 The terms legal assistant and court clerk are used interchangeably. Tr. vol Page 14 of 43

23 sometimes assist the ALJs in drafting orders. See Tr. vol. 2, , vol. 3, 685. If there is a problem with how a case has been filed, or how the exhibits have been organized, the ALJs directly address the problem with the Legal Assistant assigned to their respective cluster. See Tr. vol. 3, 804. If a Legal Assistant does not comply, an ALJ will then go to a PALJ for support in the resolution of the problem. See Tr. vol. 2, , vol. 3, As a last resort, an ALJ or a PALJ might contact the Clerk of Court to help resolve the issue. See Tr. vol. 2, , vol. 3, 687. The ALJs also work directly with Attorney Advisors, who are assigned to the OAH s Office of General Counsel. Tr. vol. 3, 689. Currently, there are five Attorney Advisors employed by OAH. Tr. vol. 3, 692. One is permanently assigned to work in the Resource Center. Tr. vol. 3, 692. The other Attorney Advisors are each assigned to one or more of the jurisdictional clusters. Tr. vol. 3, 689. The ALJs assign research and other specific case support work to the Attorney Advisors, monitor the progress of any assignments made, and critique their final work product. Resp t Ex. 22; Resp t Ex. 23. During the consideration of an assigned case, for example in preparation of orders on reconsideration motions, the Attorney Advisors report directly to the ALJs for whom they have been assigned to work. Tr. vol. 3, 693. Additionally, the ALJs provide feedback regarding the performance of the Attorney Advisors and of other support staff to the General Counsel or to the Clerk of the Court, which is used as the basis for the yearly performance evaluations. See Resp t Ex. 4, 26, 31; Tr. vol. 4, 822. Once an Attorney Advisor is assigned to work with an ALJ on a particular case, he or she often works exclusively for that particular ALJ, and receives any related assignments from that ALJ. See Tr. vol. 1, , 109, , vol. 2, , 502, vol. 3, 693, , vol. 4, 802, Page 15 of 43