Publication of policies governing agency arbitrators
To improve transparency, agencies should publish information about arbitrators on their websites.
Many federal agencies to employ arbitrators who conduct arbitrations on these agency issues. The public, however, knows little about the people who conduct these proceedings and may wonder: how are these arbitrators hired? How are cases allocated? And how do agencies ensure that arbitrators give involved parties a fair hearing?
Agency websites often reveal surprisingly little information in response to these types of questions about agency arbitrators, and agencies should provide more information to the public on this topic.
Some referees are administrative law judges (ALJ). Under the Administrative Procedure Law, The ALJs chair the formal hearings. A fairly uniform set of rules governs their employment with a concern for impartiality.
Recently, however, the conditions of employment of ALJs have come under scrutiny. In Lucia against securities and the stock market Commission, the Supreme Court of the United States concluded that the ALJs presiding over securities auctions are “officers of the United States” and are subject to the requirements of the Appointment clause in the US Constitution. The tribunal allowed the applicant in Lucy a new hearing because the ALJ which presided over his case had not been appointed in accordance with the Constitution.
Beyond the ALJs, other arbitrators hold various titles, such as “administrative judge”, “hearing officer” or “administrative appeals judge”. These referees are subject to a heterogeneous set of statutory provisions, agency rules and agency policies.
But, in 2018 United States Administrative Conference (ACUS) report through Kent barnett of University of Georgia Law School and Logan cornett, Malia Reddick, and Russell wheeler of Institute for the Advancement of the American Legal System highlights, little is known about these umpires. It is also not well understood to what extent the policies of agency arbitrators vary – including policies on the types of cases they hear, minimum hiring qualifications, and measures to ensure impartiality.
For three main reasons, it is important for agencies to make information on referees more accessible to the public. First, greater transparency of decisions and arbitrators improve public confidence in agency processes. Individuals should be more confident that they will receive a fair hearing if they know more about their referees.
Second, agencies can better learn each other’s practices and experiences if they share information about referees.
Finally, with continued challenges in federal courts to the constitutionality of appointments of arbitrators, greater transparency promote public understanding of the constitutional status of arbitrators.
To promote greater transparency, ACUS has begun a draft review of the publication of policies governing agency arbitrators.
Some agencies, it turns out, already publish lots of information about their referees. As ACUS pointed out in its report on this project, some agencies publish policies governing the appointment and qualifications of arbitrators, duties and responsibilities, supervision and assignment of work, and position within hierarchies. organizational structures.
Some agencies also publish information on the methods of evaluating the performance of arbitrators, their challenge or disqualification, the process for reviewing decisions, the limits of communications with the parties and other policies ensuring separation between the functions of arbitration and execution of the organization. Yet agencies do not always disclose all policies associated with arbitrator positions. Remuneration, discipline and dismissal policies for arbitrators are less readily available.
Even when agencies make information about agency decisions public, this information is often difficult to find and scattered over a number of sources. Some information can be found in an agency’s authorization statutes, while other policies are formally promulgated as regulations and included in the Code of Federal Regulations.
In addition, many other policies are found only in the Federal Register or on agency websites. The information available on agency websites is often lacking in detail, although it is the primary source that many people turn to for information. In addition, many of these documents are written in very technical language, which can be difficult for the general public to understand.
Based on this research, ACUS adopted at its last plenary session, a recommendation on the publication of policies governing agency arbitrators.
In its recommendation, ACUS suggests that agencies provide information on their websites on certain jurisdictional policies. It urges agencies to offer this information in a brief and direct manner and includes a list of the types of policies that should be published. ACUS too recommended that agencies post links and citations to sources of legal authority and other key legal documents, such as federal laws, agency published rules, publicly available guidance documents, delegations of authority and job descriptions.
ACUS Remarks that agencies should present these documents in a clear, logical and comprehensive manner. Depending on the agency’s mission, a link to the information should be placed either on the agency’s home page or in a location on the website dedicated to decision-making documents, a location a user would go to. logically if he was looking for this information.
With its new recommendation on referee information, ACUS aims to make more information readily available to anyone who visits an agency’s website. Its recommendation builds on a number of other recommendations made by ACUS. adopted during the last years. As ACUS points out in all of these recommendations, agency transparency is an important element of good governance.
This essay is part of a 7-part series entitled Improved accessibility and transparency of administrative programs.