Strengthening Administrative Accountability Through Improved Administrative Appeals Systems: Opportunities and Challenge

1. Some Preliminary Observations from Reform Initiatives in Latvia and Bosnia-Herzegovina Malcolm Russell-Einhorn IRIS Center, University of Maryland The World Bank, June 8, 2004 Strengthening Administrative Accountability Through Improved Administrative Appeals Systems: Opportunities and Challenges

2. Overview • Potential significance of administrative appeals systems (and administrative procedures generally) to promotion of ‘everyday justice’ and governmental integrity • The specific purposes served by an effective administrative appeals (internal review) system • Use of a questionnaire in Latvia to assess functioning of various ministries’ appeals systems; additions to such a questionnaire through work in Bosnia • Public sector management and political economy challenges to implementing administrative appeals reform efforts: picking appropriate targets of opportunity

3. A sound administrative procedure system • Concerned with constraining bureaucratic discretion • Encompasses procedural rules for initial administrative decision-making as well as an opportunity to appeal to administrative body; may also encompass court review (e.g., everything from tax to pension appeals) • Through substantive and procedural protections, ‘evens the playing field’ between the state and citizens • Is concerned with both efficiency and fairness, which has a potential impact on citizen trust in government and the investment climate

4. Recent worldwide attention paid to administrative procedure reform • Major new laws on administrative procedure passed in Korea, Japan, and Taiwan in the early 1990s • Major new codes adopted in past several years in transition countries, including Latvia, Estonia, Georgia, • Coincides with political realignments and greater contestation; and EU accession efforts

5. Relative priorities: first-instance decision-making and deregulation vs. administrative appeals vs. court review • Complementary parts of an integrated system of administrative justice • Deregulation and first-instance decision-making significantly more important • Significant public sector management challenges and demand-side usage problems attend administrative appeals systems

6. Purposes of an administrative appeals system • Provides quick and inexpensive way for public to challenge administrative decisions without going to court • Raises public trust in the administration • Provides agencies opportunity to use expertise to check lower instance decision-making for correctness and consistency • Clear interpretation of law and procedure discourages unnecessary second instance and court appeals by public; and incorrect case processing by first instance decision-makers

7. Internal review systems are generally neglected • Not accorded as much attention or prestige as court review as source of substantive legal interpretation • Second instance decision-makers in ministries or agencies often under-staffed and under–resourced; often lack appropriate expertise • Also sometimes lack sufficient organizational independence and/or political support by agency • Hard for agencies and government as a whole to share information/good practices on internal review

8. Progress of Administrative Procedure Reform in Latvia • Historical antecedents of the new Administrative Procedure Law (Inter-war period, Soviet period, 1990s) • Among many reasons for a new law, most crucial was improving court procedure and enunciating modern European substantive review principles • Drafting of new law began in 1999; law enacted in 2001, effective date February 2004 • Implementation grant from World Bank in 2003: five components, incl. assessment of admin. appeals

9. Latvia’s new administrative procedure law (APL)(2004) • A framework law that provides a ‘floor’ for proper administrative decision-making • Features decision-making based on democratic principles (equality, proportionality, lawful basis), introduces new court procedural rules • Also features decision-making informed by clearer procedural regularity (opportunity to be heard, to present evidence, to be given reasons for a decision)

10. Key obligations of civil servants under the new APL • Provide citizens relevant information and obtain such information from other agencies if necessary • Clarify and assess arguments of citizens seeking an administrative decision • Issue decisions that contain arguments of the parties and a reasoned justification for the decision • Give citizens a right to be heard on appeal in a ‘higher institution”

11. Translating the APL’s promise into reality As usual, an ‘implementation gap’ may exist: • Legal norms need to be harmonized • Commentaries need to be written • Internal guidelines and forms need to be developed • Civil servants need training • Public needs information • Better recordkeeping and monitoring needed

12. Use of a survey to clarify APL implementation issues • Designed to gather information about existing internal review procedures and plans for implementing the APL • Drafted with input from, and administered to, members of a Prime Minister’s Working Group • Two separate questionnaires: one for ministries and one for subordinate institutions • Basically limited to supply-side concerns

13. Key topics of the surveys • Types and volume of administrative decisions • Levels and avenues of appeal • Volume of appeals and recordkeeping • Internal processes for handling appeals • Review/monitoring of appeals practices • Training of civil servants • Public information practices • Retrieval of information between agencies • Resource needs for implementation of the law

14. Survey responses • 15 out of 17 ministries responded (88%) • 83 out of 95 subordinate institutions (87%) • High response rate can be considered comprehensive for national-level government • Survey not administered to municipalities, but results are suggestive for them as well

15. Types and volume of administrative decisions • Many institutions could not supply full list of types of administrative decisions they issued • Information on volume of administrative decisions was better, but still understated • Most agencies failed to identify procurement, freedom of information, or civil service decisions as decisions • Failure to fully identify types and volume of decisions reduces agency ability to comply with law and ensure good management practices

17. Levels & avenues of appeal • Special legal norms often govern avenues of appeal • Ideally should have one internal appeal level, but 38 of 83 institutions reported more than one • Appeals often made to head of a regional or structural unit, and then to the head of an institution or to ministry • For fairness and efficiency, better to focus on quality of review and limiting number of appeal instances (avoiding “appeal fatigue”)

18. Differences of Opinion Re: Avenues of Appeal

19. Volume & recordkeeping of appeals • Few institutions keep statistics on numbers or outcomes of appeals • Many institutions that do keep statistics on appeals have very low figures • Of those that keep statistics, several have very high affirmation rates, possibly problematic • Dearth of statistics prevents analysis, learning, and improvements in quality of service

20. Organization and processes for handling appeals • Only 16 out of 83 subordinate institutions have a dedicated unit to handle appeals • 8 had standing appellate commissions with collegial decision-making • Dedicated appeals units or boards may be required where large numbers of appeals are filed and/or special expertise is needed

21. Considerations affecting location & nature of internal appeals units To ensure quality review, set up appeals units that have: • Reviewers with adequate legal and technical expertise and writing skills • Reviewers with adequate political support and resources/salaries • Functional independence from line agency personnel

22. Procedures and guidelines for handling appeals • 50 institutions reported having no external or internal guidelines for handling appeals • Number is probably higher, since only 9 institutions clearly reported having guidelines • Only 4 institutions reported guidelines governing substantive review of appeals • Only 4 institutions reported using checklists of necessary elements for rendering decisions

23. Forms and information for the public on appeals procedures • Although many agencies have standardized forms for issuance of administrative acts, most relate only to administrative violations cases • Most forms do not provide clear guidance on where appeals will be lodged and processed under the APL • 21 agencies have web sites that explain something about appeal rights, while 12 institutions have brochures on the subject.

24. Systemic reviews/monitoring of appeals practices • 51 out of 83 responding institutions said they conducted no systemic analyses • How ‘systemic’ actually are such reviews? • Value of such reviews: identifying problems in policy, procedures, practices • Helpful to periodically survey staff & appellants • Appeals should be analyzed to identify trends and rectify recurrent problems

25. Retrieval of information between institutions • APL requires institutions to gather all information necessary to a decision, rather than requiring citizens to obtain it. Many don’t. • 82 out of 98 institutions said they will use letters of request to fulfill this obligation; 54 said they will use access to online government databases to obtain data; • 44 said they will also use phone calls to track down needed data

26. Percentage of Civil Servants (7%) by Ministry Who Have Received Some APL Training

27. As a result of the surveys • Ministries have better understanding of what the implementation issues are • Agencies can advocate more persuasively for resources and/or legal and regulatory changes • Individual agencies can engage in priority-setting as well as joint initiatives (special norms, training, information exchanges) • Government as a whole is sensitized to need for more resources, donor support, and relationship of APL reform to other public sector management & legal reforms

28. Mapping Procedures and Writing/Publicizing Guidelines to Eliminate Vagueness & Discretion • Avenues of appeal; designation of internal review • Procedures for reviewing appeals, including taking of evidence and conduct of hearings; publicizing same • Procedures and forms to document appeals • Minimum requirements for recordkeeping

29. Additional Diagnostic Emphases in Bosnia • USAID project focused on administrative procedural reform at local and national level • Intensive internal review work with a few ministries (strategic planning, training, case management) • More emphasis in surveys on probing pay, education, and independence of 2nd instance decision-makers • Additional survey emphasis on probing other reasons for failure to decide appeals on merits

30. Challenges for administrative appeals systems reform • Political economy considerations (sufficient political contestation; ministry leadership, corruption dynamics) • Need for concomitant civil service and other public sector management reforms • Need demand-side pressures from civil society, esp. the media and ombudsman, if any • Judiciary can also be a source of pressure

31. Picking the right targets of opportunity • Generally best to take a sectoral, ministry-focused approach based on demonstrated ministry leadership and a motivated community of system users • Better if it’s part of, and complements, a broader public sector management initiative • Better if public users of system can be surveyed or otherwise provide input on procedures