Ken Plann and interim DOAH Director Darren Schwartz described competing views on a staff proposal to change appointment and retention procedures for administrative law judges (ALJs).

Plann summarized staff concerns and the proposed amendment, which would make the appointment, evaluation and retention process for DOAH judges similar to the process used for judges of compensation claims, including a nomination list and gubernatorial appointment model. “Given the scope of work and responsibility that resides with administrative law judges it would seem appropriate that their appointment and evaluation coincide with that of the judges compensation claims,” Plann said in his briefing.

Darren Schwartz, interim director and chief judge at the Division of Administrative Hearings (DOAH), told the committee he understands concerns about accountability but warned that the two appointment systems cover different functions. “The workers' comp judges do nothing but workers' comp claims…On the other hand, the ALJs under chapter 120…primarily hear cases involving state agencies and propose agency action,” Schwartz said. He argued that placing appointment power with cabinet officers whose agencies sometimes appear as litigants could create conflicts of interest and that there may be other ways to improve ALJ accountability.

Committee members asked about timeliness of ALJ orders and whether evidence rules should be consistent. Schwartz said he favors timely orders and internal guidance on case processing, and he welcomed further conversations about improving accountability. The committee later adopted a motion to forward the staff material to the Senate President and the House Speaker; roll call recorded affirmative votes from Senator Bernard, Senator Gates, Senator Yarbrough, Representative Connerly, Representative Johnson, Representative Kendall, Representative Kendrick, Representative Weinberger and Representative Overdorf and a recorded no vote from Senator Smith; the motion carried.