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Advisory Opinions

AO-105-07

Opinion No.: AO-105-07
November 28, 2007

Digest: Disclosure and disqualification obligations of an ALJ previously employed by an agency appearing before the ALJ, who is also married to an agency inspector supervisor are:

One: An ALJ is not required to disqualify himself or herself from all hearings arising from an agency the ALJ was formerly employed by as a hearing officer - only those cases the ALJ actually heard during the prior employment, those in which the ALJ has significant personal relationships with the parties that raise reasonable questions about the ALJ's impartiality, and those in which the ALJ feels unable to adjudicate impartially.

Two: An ALJ is disqualified from hearing cases arising within an agency in which the ALJ's spouse had direct or supervisory involvement in the underlying matter or in the preparation of that case (subject to remittal) or where the ALJ's knowledge of the individuals or facts of the case derived from personal connections with the agency could lead a reasonable person to question the ALJ's impartiality.

Three: An ALJ's prior conduct, employment or relationship with a party should be disclosed whenever an ALJ reasonably believes that (a) one party but not another is aware of that prior conduct, employment or relationship, or (b) the conduct, employment or relationship is likely to otherwise be disclosed during the proceeding.

Four: An ALJ should disclose the spouse's employment as an inspector in a matter where the ALJ has not already disqualified himself or herself and where the spouse may have some possible involvement in the case or one party may be privy to information about the ALJ's spouse that is likely to arise during the hearing.

Five: An ALJ's disclosure to a self-represented litigant should be about the same as a disclosure to a represented litigant.

Six: The standard by which an ALJ should decide the question of disqualification is set forth in section 103(D)(1) of the Rules: "A City administrative law judge shall disqualify himself or herself in a proceeding in which the City administrative law judge's impartiality might reasonably be questioned." The test is one of objective reasonableness.

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Rule: 48 RCNY Appendix A: "Rules of Conduct for Administrative law Judges and Hearing Officers of the City of New York," Sections 102(A), 103 (A)(5), 103(D)(1)

Opinion: An ALJ inquires about disqualification and disclosure based on prior employment with an agency party and on a spousal relationship with an agency supervising inspector. The issues will be addressed as follows: (1) disqualification due to prior employment; (2) disqualification due to spousal affiliation; (3) disclosure due to prior employment; (4) disclosure due to spousal affiliation; (5) disclosure to self-represented litigants; and (6) standards for determining disqualification.

One: Is an ALJ disqualified from hearing a case if the ALJ was previously employed by the petitioning agency?
Disqualification is not triggered simply by prior employment at the petitioning agency, i.e., an ALJ's impartiality cannot be said to be reasonably subject to question merely because the case before the ALJ is presented by an agency at which the ALJ formerly worked. Rather, an ALJ previously employed at an agency is disqualified in the particular circumstances set out in the Rules. For example, an ALJ would be disqualified under section 103(D)(1)(a)(i) if, by virtue of the ALJ's prior employment (or otherwise), he or she had a prejudice concerning the petitioning agency (either favorable or unfavorable); an ALJ would be disqualified under section 103(D)(1)(c) if he or she worked on, or supervised, the particular matter at issue; an ALJ would be disqualified under section 103(D)(1) generally if a witness in the matter were someone with whom the ALJ maintained a friendship close enough that the ALJ's impartiality might reasonably be questioned.

Under this analysis, the ALJ would be required to disqualify himself or herself only with respect to those cases the ALJ actually heard during the prior employment, those in which the ALJ has significant personal relationships with the parties that raise reasonable questions about the ALJ's impartiality, and those in which the ALJ feels unable to adjudicate impartially.

Two: Is an ALJ disqualified from hearing a case brought by a petitioning agency at which the ALJ's spouse works as an inspector?
A spouse's employment as an inspector may result in the ALJ needing to disqualify himself or herself in two ways. First, an ALJ would need to disqualify himself or herself where the spouse, as an inspector with the agency, may become a "material witness in the proceeding" (section 103(D)(1)(e)), or where the spouse has "an interest that could be substantially affected by the … proceeding" (section 103(D)(1)(d)). Second, the ALJ would need to disqualify himself or herself where the relationship with the spouse has resulted in exposure to significant details about the facts of the case (a form of ex parte contact) resulting in "personal knowledge of disputed evidentiary facts" prohibited under section 103(D)(1)(a) or where such contact would affect the ALJ's actual impartiality.

Under both of these conditions, and given the confluence of the ALJ's prior employment, the spouse's current employment and the ALJ's ongoing relationships with other inspectors, the ALJ should disqualify himself or herself from all cases in which the spouse was an inspector or which were initiated by the inspector's division. In order to avoid unnecessary adjudicatory delays, the ALJ should review all cases from the point of assignment, including the possibility of having a clerk contact the agency where necessary, to determine the possible involvement of the spouse or a member of the inspectors' division in the case as a witness or other participant.

Three: Must the ALJ disclose the ALJ's prior employment at the petitioning agency?
Disclosure requirements arise out of concerns over avoiding impropriety and the appearances of impropriety under section 102 and impartiality under section 103(D)(1)(a). Here, disclosure may serve both purposes. First, as discussed in answer to question one above, insofar as the ALJ reasonably believes that the matter presents circumstances under which disqualification may be necessary due to the ALJ having previously worked on the case or it involving an individual with whom the ALJ has a close personal relationship, the ALJ should make an appropriate disclosure to enlist the parties' assistance to determine whether (or give the parties the opportunity to demonstrate that) disqualification is necessary. Because the requirement is a practical one, it will depend on the practices of the petitioning agency. If a pending matter would surely have been concluded during the period since the ALJ's employment there, the employment need not be disclosed. If the ALJ's employment at the agency is sufficiently recent that a matter now before him or her may have originated during his or her tenure at the agency, the employment should be disclosed.

Moreover, even where the ALJ's underlying conduct, employment or relationship is not itself disqualifying, under some circumstances the failure to disclose the conduct, employment or relationship may give rise to an appearance of impropriety. Therefore, disclosure of an ALJ's prior conduct, employment or relationship with a party should be made whenever an ALJ reasonably believes that (a) one party but not another is aware of that prior conduct, employment or relationship, or (b) the conduct, employment or relationship is likely to otherwise be disclosed during the proceeding.

Four: Must the spouse's employment be disclosed?
Disclosing the employment of an ALJ's spouse is governed by the same principles and serves the same purposes as disclosure about the ALJ's personal interests and involvement with the agency. Thus, the ALJ should disclose the spouse's employment as an inspector in a matter where the ALJ has not already disqualified himself or herself and where the spouse may have some possible involvement in the case or one party may be privy to information about the ALJ's spouse that is likely to arise during the hearing.

Five: How should the ALJ handle the foregoing obligations when a litigant is self-represented?
In this context, the ALJ's presentation to a self-represented litigant will be about the same as the presentation to a represented litigant. In order to effectuate the goal of informing the party without promoting further confusion or conflict, it is recommended that the ALJ prepare a standard disclosure statement that should convey: (a) that his or her spouse is an inspector with the petitioning agency; (b) that the spouse appears to have no involvement in the matter; (c) that the ALJ is asking the parties to inform him or her if they have different information; (d) that based on what the ALJ knows, he or she is not disqualified; and (e) the parties have the right to object. For a self-represented litigant, there should simply be a little more explanation of what disqualification is and why it is not required here (unless the ALJ turns out to be wrong about the extent of the spouse's involvement). As provided in section 103(A)(8)(a)(vii), the judge should "minimiz[e] the use of complex legal terms."

A possible instruction might read as follows:

I would like to inform the parties that my spouse is an inspector with the agency. As far as I can tell, my spouse has absolutely no connection with this case and its outcome cannot conceivably affect either my spouse or me. If you have any information to the contrary, please let me know. However, unless you are able to offer evidence to demonstrate how this case affects my or my spouse's interest, I will rule that I may hear this case. If at that point you still have objections to my serving as the judge on this case due to my spouse's employment, you may raise them and they will be included in the record for possible review on appeal.

Six: What standards apply?
The standard by which an ALJ should decide the question of disqualification is set forth in section 103(D)(1) of the Rules: "A City administrative law judge shall disqualify himself or herself in a proceeding in which the City administrative law judge's impartiality might reasonably be questioned." The test is one of objective reasonableness. The Rules set forth a number of situations in which it has automatically been determined that an objectively reasonable person would question the judge's impartiality and that therefore the judge should disqualify himself or herself (see section 103(D)(1)(a-f)). These represent examples of situations in which a judge's impartiality may be questioned and are not meant to be exclusive. A decision to disqualify is subject to remittal, except in those specific circumstances described in section 103(E)(2).

Included in the situations in which the Rules have automatically determined that an objectively reasonable person would question the impartiality of a judge is the circumstance where a judge has a personal bias or prejudice concerning a party (section 103(D)(1)(a)(i)). Determining whether an ALJ has such a bias or prejudice requires of course, that the ALJ engage in subjective analysis of his or her own feelings. Once an ALJ has subjectively determined that he or she has such a bias or prejudice, the decision to disqualify has an objective basis - namely the fact that a reasonable observer would question such an ALJ's impartiality. A disqualification on this basis cannot be remitted.

An ALJ who has concluded that he or she does not have a personal bias or prejudice concerning a party should be careful not to overlook any other basis upon which disqualification might be required under section 103(D) because his or her impartiality would reasonably be open to objective questioning.

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