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Minnesota State Office of Administrative Hearings

This past November, Minnesota's Office of Administrative Hearings ("OAH") initiated a mandatory evaluation system for its approximately 105 judges. This effort is expected to draw the keen interest of many who have wrestled with the issue of mandatory evaluation for all portions of the state's judiciary. Bench & Bar talked in mid-January with Chief Administrative Law Judge Ken Nickolai ("KN") and special assistant Carol Trudeau ("CT") about the OAH and its new system.

Q: For those not familiar with it, please describe the Office of Administrative Hearings -- its structure, jurisdiction, operations, etc.

A (KN): Currently, the office includes 11 full-time administrative law judges ["ALJs"]and 37 workers compensation judges statewide (with 25 located at the primary OAH offices in Minneapolis, nine in St. Paul, and the remainder in Duluth and Detroit Lakes). The OAH also contracts with lawyers with pertinent expertise to serve as temporary administrative law judges.

A (CT): We have 13 [temporary judges] on contract who do administrative law strictly, and we have had 45 who do child support, and some of them may do some other administrative law, too. So, we have 100 to 105 total at OAH, but they aren't all full-time.

A (KN): Legislative mandates determine [OAH] jurisdiction. It is dedicated to administrative law, but it has responsibility under a broad array of legislation -- where the Legislature has created an administrative system. Some areas have included workers compensation, child support, Department of Health asbestos abatement, assignment of risk levels for community notification about convicted sex offenders about to be released, violations of the Minnesota Human Rights Act, state agency rulemaking, utility rates hearings, environmental permits, or health providers' license revocations. Counties and municipalities, at their option, can use OAH judges for personnel hearings and the like.

During the last fiscal year, OAH judges presided over 18,080 cases. Of those, 10,026 were child support matters.

Q: What is the history of the OAH?

A (KN): The Legislature created this office in 1975 to make sure citizens got an opportunity for a fair hearing independent of the state agency that was responsible for bringing an enforcement action or managing a major system.

Originally, this office's duty was to conduct the hearing and make findings of fact, conclusions of law, and a recommendation to the appropriate commissioner. As different problems arose, the Legislature gradually changed that, so that in some areas -- human rights cases, for example -- this office makes a final decision. That decision is appealable directly to the Court of Appeals.

"we don't call it a judicial evaluation system, we call it a judicial development program. It's mandatory for all OAH judges."

Q: How do OAH proceedings compare with those of state trial courts?

A (KN): We're less formal. We work to make ourselves an accessible system. Our rules do not require strict application of the Rules of Evidence. One area we work with administrative law judges on is to make sure that when parties represent themselves, the judges take the time to help draw out all the relevant information to make sure their record is complete.

In workers comp cases, people generally are represented by counsel. But in other work we do -- the child support cases and much of the work with administrative agencies -- we have seen a high percentage of pro se litigants.

OAH tapes all proceedings, because that is a fast and efficient method. If there is an appeal, we can prepare a transcript from the tapes. For the larger, more complex cases, where the parties want a court reporter in there, we use one.

Q: What is your history with the OAH? What was your background before you joined it?

A (KN): I was with the Attorney General's Office for a number of years, doing utility regulation. I got recruited into agency management, becoming an assistant and then deputy commissioner of public service. I later went to the Kennedy School of Government and then got into environmental work, working for the regional counsel's office of the Environmental Protection Agency in Boston.

I came back here to Minnesota and worked a little while with an environmental advocacy organization. One of Gov. Arne Carlson's staffers recruited me to come to the Department of Human Rights, which was going through some difficulties. Eventually I became deputy commissioner. By the time I left there, we'd had success in reducing the huge case backlog.

Because of that, when there was an opening for chief administrative law judge, the Governor's Office contacted me to see if I was interested. That was at the end of October 1997. I was appointed as acting chief, but the way the statute is set up, I got a new six-year term -- which runs until June 30, 2004 -- once the Senate confirmed me.

A (CT): I've been with the OAH for 12 years. I had worked with the Washington County Attorney's Office as a paralegal. I left there to work in the Dakota County Attorney's Office to help set up the administrative process in Dakota County for a pilot project on child support enforcement.

That was phenomenally successful, so the Department of Human Services decided they needed it to go into the other counties. They needed somebody to spearhead the other counties coming on. So I left Dakota County and came to the OAH. We added 16 [counties] in 1989; every three years we would add more. I worked on that until about a year ago, when I became Ken's special assistant and started working on other projects, including setting up our feedback system.

Q: How do administrative law judges receive and retain their positions? How would one be removed? (Do they have terms, tenure, civil service protection, etc.?)

A (KN): Full-time administrative law judges and workers compensation judges are all classified civil servants. They are selected through the system for hiring classified state employees. That requires that we publish notice. The Department of Employee Relations scores all the applications and gives us a list of qualified applicants. We then hire from that list on the basis of skills, knowledge, and ability.

They're all governed by what is known as the "commissioner's plan." The idea is to create a cadre of professionals who will act independently in their judging capacity.

I have the ability to discipline and to fire for justifiable reason -- so it's not like in the judicial branch, with elected judges. But the statute for the OAH is set up to preserve decisional independence. The state's civil service system protects ALJs and compensation judges from unjust dismissal, just as for other classified state employees.

Regarding part-time judges, the 1975 legislation that created the OAH authorizes the chief administrative law judge to contract with lawyers to come in as temporary judges on particular kinds of questions. So, it has developed over the years that we enter two-year contracts with practitioners, who agree to abide by the appropriate ethical constraints. As the caseload increases, we draw on them. Specialized knowledge and geographic location are also factors in use of the temporaries.

A (CT): When we started getting all the child support cases, we had complaints because the ALJs weren't learned in family law. And travel time for the ALJs is important, because we charge portal to portal. So we hired contract judges around the state, so the costs to the parties wouldn't be so high.

A (KN): If contract judges proved not to be a good fit for the role, even after working with them on any problems, we just wouldn't refer additional cases to them for the remainder of the contract term. We have a contract with them, but we don't have to give them work. Then we wouldn't renew their contracts.

Q: Who will be evaluated, and when?

A (CT): By the way, we don't call it a judicial evaluation system, we call it a judicial development program. It's mandatory for all OAH judges, including administrative law judges, compensation judges, and private attorneys who contract as ALJs.

The first round will cover nine months. Each judge will be evaluated over a three-month period, selected by lottery. No one will know in which three-month period they'll be evaluated. For some who don't hear many cases, their evaluation will cover the entire nine-month period. The first third went out in November, the second third in February. The final group will go out in May.

Q: Please describe the system the OAH has established.

A (CT): We will mail questionnaires to 75 participants, including attorneys, parties (both represented and pro se), agency representatives, and insurers. Each survey recipient will receive a stamped, addressed envelope so that completed surveys can be sent only to the Minnesota Department of Administration's management analysis division.

[The] questionnaire will contain no space for the name of the respondent, and will carry no identifying number. It will remind respondents not to include identifying factors. The Management Analysis Division ["MAD"] will review responses for possible identifiers.

I find the survey recipients by literally going through the orders and randomly selecting them. We have two forms, one for non-attorneys and one for attorneys, which asks additional questions.

All the completed surveys will be sent directly to MAD so they will compile all the information from the completed surveys and do summaries -- individual summaries for the judges and office-wide summaries for Ken. It's nice that we don't get that piece. It's totally anonymous. We have no way of identifying who responds or who doesn't respond.

We include hard-to-copy labels on the surveys we mail out, because we didn't want anyone making copies and distributing it to all the others in their law firm. We wanted the responses to be unique.

Each judge selects a mentor. The survey results -- and there will be only the original, with no copies -- will go directly from MAD to the mentors. Then the mentors will meet with the judges, who will have done their own self-evaluation.

"everyone needs to adapt to how they're being perceived and to figure out how they can do their job better."

Q: How will evaluation results be used?

A (KN): This is an effort to give judges information that will help them develop their professional skills as a judge. Even though I have the ability to take disciplinary action, this is not for that purpose. We have a totally separate complaint procedure if people have problems with a particular judge. This is a developmental effort, to help judges learn how they're being perceived in the hearing room. No one on the OAH management team will be aware of the results of the individual surveys of other judges.

A (CT): Ken will be receiving, on his office-wide results, some of the open-ended comments. Those will tell a lot about how we're being perceived.

A (KN): We'll watch the office-wide, aggregate results to see if there's a pattern that tells us we really need to spend some time and effort on development in particular areas.

As a person new to the judging role, I'm really looking forward getting my results. It has struck me just how difficult it is to know if I'm actually accomplishing what I hope to be doing in conducting a case -- being impartial, and treating everyone fairly.

Q: Why did you institute the evaluation system?

A (KN): When I came on board, right away I noticed the big article on judicial evaluation in the March 1998 Bench & Bar. And with my background in management of different agencies, the Kennedy School and all, I'm a very big believer in the idea that everybody needs feedback. Because everyone needs to adapt to how they're being perceived and to figure out how they can do their job better.

After I read this article, I decided that one thing we could do here was to give an opportunity for people who appear before the office to give feedback in a constructive way. Carol was willing to take this on, and work with the judges here.

Q: How did you go about forming the system?

A (CT): When I started, I researched a lot of the other places that do it. I contacted the different judicial districts in the state. They have their different ideas -- or nonexistent ideas, in some cases. I contacted the OAHs in a number of other states that have them.

What we have now in place is kind of a combination of several of those systems. But a lot of the pieces are based on Hennepin County District Court's internal evaluation. And Hennepin County's is based on Illinois'. I also went over to the Office of Jobs and Training, because they have a real good system. But that's more of something that we're looking at for the whole office, rather than just for the judges -- it's continual evaluation, and self-evaluation.

After my research, I formed a proposal and presented it to the management team here. I decided it would be best to have a small committee of judges. We met two or three times, I think. They made some of the decisions, such as who would evaluate them. I had thought that maybe some of the support staff people would evaluate them. They decided that if they were being evaluated as a judge, the support staff really wouldn't know how they perform in the hearing room.

Then we decided on the number of questionnaires we needed. I proposed a survey, and the committee decided which questions were relevant. The management team had the final say on their suggestions. I then met with Peter Butler at the Management Analysis Division.

Q: What obstacles have you confronted in forming and implementing the system?

A (CT): We had some judges who were very much against the process, I think partly due to fear -- but also because we actually had been evaluating the ALJs on a sporadic basis. There was a lot of fear, and it was very controversial. So, we had to "sell" the idea to them. The best way to deal with that was to get some of those who were averse to the idea on the planning committee.

One of the problems that they had -- and there were many excuses -- that made me think was the concern by judges about how they could feel comfortable with people at a hearing, knowing that those people would be evaluating them.

We got a little later start than I wanted, because I wanted a database that would be easier to set up the evaluation system. So we got a programmer in here, and she set up an excellent program.

Q: How do you foresee proceeding with the evaluation system in the future?

A (CT): We won't be getting the whole office-wide report until August or September. Then I think we'll take a year off, and evaluate our own evaluation. Perhaps next time we'll add the whole office to the evaluation, so we'll all get feedback.

A (KN): After we look at the first round, we'll see what's working and what's not working -- we'll get some feedback on the feedback system. We'll think about what else the office needs. That's when we'll deal with questions like whether the chief judge needs to see results on individual judges, or whether we need the information for decisions on contract judges. That's when we'll ask ourselves, "What's the appropriate next step?"

Q: Do you think the OAH's evaluation system would be effective and appropriate for state trial or appellate courts?

A (CT): Absolutely. We have contracted with MAD -- that approach would be available to the district and state courts, too.

A (KN): It would not work if your goal is to get information to the public. Confidentiality and privacy are essential to this system, whose sole purpose is to give judges a chance to develop their own skills and abilities, to help them be better judges.