Executive Order No. 131 (9 NYCRR § 4.131)

by Gene Doyle, LMSW

In a February 1, 1990 memorandum, New York State Department of Social Services (NYSDSS) General Counsel Susan V. Demers informed ALJs of Governor Mario M. Cuomo's December 4, 1989 Executive Order No. 131 [codified at 9 NYCRR § 4.131] "to ensure that the state's administrative hearing system operates in an impartial, efficient am timely manner."

According to General Counsel Demers, the Executive Order required the following two actions that impact the Office of Administrative Hearings (OAH):

     "In order to ensure the separation of hearing and program functions, and to ensure the impartiality of the Office of Administrative Hearings, a new structure will be implemented for the Office of Administrative Hearings. The position of Associate Commissioner for Administrative Hearings has been created, and I will shortly begin recruiting to fill that position. In the interim, the Bureau of Fair Hearings will continue to be supervised by Acting Deputy Counsel Russell Hanks, who will report directly to me effective today. The Bureau of Special Hearings will continue to be supervised by Deputy Counsel Peter Mullany who will also report directly to me. Previously, Russell and Peter had reported through John Robitzek, who was the Acting First Deputy Counsel. A new position of Associate Commissioner for Legal Affairs has been created and John will serve in that capacity. The Executive Order requires that this separation of functions occur and this revised reporting structure satisfies that requirement.

     "The second change in the Office of Administrative Hearings practice required by the Order concerns the issuance of hearing decisions. In those rare circumstances where a decision is issued which includes findings of fact or conclusions of law which conflict with the findings, conclusions, or recommended decision of the hearing officer, the reasons why a conflicting decision was reached must be set forth in the decision. Nothing in the Order precludes a supervisor from giving legal advice or guidance to a hearing officer where the supervisor determines that such advice or guidance is appropriate to assure that decisions meet the quality standards of the Department and are consistent and legally sound. The reasons for reaching a conflicting decision must be set forth only in those rare instances where, despite being advised that an error of fact or law or other error has been revealed by a review of the hearing transcript and the recommended decision, the hearing officer fails to make necessary changes to the decision and the Commissioner's designee must make the changes. In all other respects the practices and procedures of our office meet or exceed the requirements of the Order and no other changes in practice or procedure will be implemented."

General Counsel Demers overlooked a third change that was necessitated by the Executive Order, namely, the development of regulations to establish a formal procure to request the recusal of an ALJ. See p. 3 of the NYSDSS Administrative Adjudication Plan. Recusal regulations were subsequently promulgated at 18 NYCRR § 358-5.6(c).

In a May 23, 1991 memorandum to ALJs, OAH attorney Sharon Silversmith distributed the new recusal regulations, which, as of May 29, 1991,

"establish a procedure establish a procedure for the removal of hearing officers holding various types of hearings, including special hearings. This includes hearings involving Public Assistance, Medical Assistance (MA), food stamps, Home Energy Assistance Program (HEAP) grants, and a variety of social services programs. In addition, the proposed regulations apply to hearings involving operators of residential care facilities for adults and children, operators of day care facilities and providers of MA.

     "A party to the hearing may make a request to a hearing officer that the hearing officer remove himself or herself from presiding at the hearing. The grounds for removal are that the hearing officer has:

• previously dealt in any way with the substance of the matter which is the subject of the hearing except in the capacity of hearing officer; or
• any interest in the matter, financial or otherwise, direct or indirect, which will impair the independent judgment of the hearing officer; or
• displayed bias or partiality to any party to the hearing.

     "In addition the hearing officer may independently determine to remove himself or herself from presiding at a hearing on the same grounds.

     "The request for removal made by a party must:

• be made in good faith; and
• be made at the hearing in writing or orally on the record; and
• describe in detail the grounds for requesting that the hearing officer be removed.

     "Upon receipt of a request for removal, the hearing officer must determine on the record whether to remove himself or herself from the hearing. Please consult with your supervisor prior to making a determination on a recusal request.

     "If the hearing officer determines not to remove himself or herself from presiding at the hearing, the hearing officer must advise the party requesting removal that the hearing will continue but the request for removal will automatically be reviewed by the General Counselor her designee.

     "The determination of the hearing officer not to remove himself or herself will be reviewed by Susan V. Demers until further notice. Such review will include review of written documents submitted by the parties and the transcript of the hearing.

     "The regulations require that the General Counselor her designee issue a written determination of whether the hearing officer should be removed from presiding at the hearing within 15 business days of the close of the hearing. The written determination of the general counselor the general counsel's designee will be made part of the record.

     "While the General Counselor her designee reviews the hearing officer's determination not to recuse himself or herself, the hearing decision itself will be held in abeyance. Where the General Counsel determines that the hearing officer should have been removed from presiding at the hearing, a decision will be issued stating the determination and remanding the matter for a de novo hearing.

     "Where the General Counsel or her designee determines that the hearing officer properly determined not to remove himself or herself from presiding at the hearing, the hearing decision will include a discussion of the determination of the General Counsel or her designee on the recusal issue.

     "Any case where a determination not to recuse is made should be promptly drafted and returned to your supervisor so that the review process can be started immediately to ensure that the review and written determination can be completed within 15 business days of the close of the hearing" (emphasis in original).

Id. at pp. 1-2.

Effective May 29, 1991, ALJs holding Fair Hearings under 18 NYCRR Part 358, must add the following language to their opening statements:

"If I have ever dealt with your case, except as a hearing officer, have any interest which no longer makes me independent or I display bias or partiality to any party at this hearing, you have the right to ask that a different hearing officer be assigned to this case."

Id. at p. 3.

These new regulations, which appear at 18 NYCRR §§ 343.8, 358-3.4(e), (j) and (k), 358-5.6(c), 418.20(n), 421.24(g)(5), 434.6 and 519.15(c), have been promulgated because the

     "Governor's Executive Order No. 131, which was issued on December 4, 1989, requires that certain State agencies which conduct adjudicatory proceedings have an Administrative Adjudication Plan. The Plan must include a procedure for any party to an adjudicatory hearing to request recusal of a hearing officer.

     "The Administrative Adjudication Plan established by this Department provides that the Department will establish recusal procedures."

Id. at p. 1.

In a July 9, 2009 memorandum to ALJs, Deputy General Counsel for Administrative Hearings Russell J. Hanks addressed supervisory changes to Fair Hearing Decision drafts. Mr. Hanks explained that

"Recently a few hearing officers have expressed a lack of clarity regarding OTDA policy involving supervisory changes to draft decisions when the hearing officer doesn’t make the suggested changes."

Mr. Hanks instructed that

"This practice was directly addressed in Executive Order 131. Subsequent to the issuance of the order, then General Counsel Susan Demers sent a memo to all hearing officers setting forth the agency’s actions to comply with the order, specifically the Executive Order’s requirements in those circumstances where a hearing officer fails to comply with the drafting guidance of a Supervising Hearing Officer, necessitating that the changes be made by the Supervising Hearing Officer. Rather than reiterate the contents of General Counsel Demers’ memo I have attached a  copy of it. The relevant text is found in the next to last paragraph."

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